Leung Kam Kwok v. The Queen

CACC000619/1981

Headnote

Murder : intention : Hyam [1974] 59 Cr. App. R. 91 Cautioned Statements introduced by the Crown containing a defence : matter for jury : Cheng Chui v. The Queen [1980] H.K.L.R. 50

BETWEEN

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Coram: McMullin, V. - P., Silke, J.A. and Macdougall, J.

Date: 8 January 1982

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J U D G M E N T

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Silke J. A. :

1. We dismissed this appeal on the 28th December 1981 and stated we would give our reasons later. This we now do. I am authorised to say that Mr. Justice Macdougall has seen this Judgment in draft and is in agreement with it.

2. On the 10th July 1980 members of the staff of the Maybo Finance Land Investment & Trading Company, 147 Hip Wo Street, Kwun Tong, were approached by two men. The men requested information as to personal loans and as to general loans relating to machinery. They were informed that personal loans were not made by the Finance Company and, as one of them turned partially away from the counter, his shirt opened disclosing a gun. That gun was then pulled by him and the barrel rested upon a grille which separated him from the members of the staff in the outer office of the Finance Company.

3. At the back of that outer office was a Manager's office in which there were several people among them Madam Lai, the deceased. The staff in the outer office thought that a robbery was taking place. One of them shouted "Robbery" and they all ducked down behind the counter or in any place where they could find some safety. The man with the gun fired a shot and that shot struck Madam Lai Kim Ying, who was the wife of the Managing Director of the Finance Company Mr. Fung Kee. Madam Lai fell with her body partially in he Manager's office and with her feet in the doorway.

4. The door into the outer office was not opened despite the use of the gun and a further shot was fired which struck the door of the Manager's office which by that time had been closed by a Mr. Tsang who had been inside. The two men then ran away.

5. In the course of a trial, which was completed on the 23rd June 1981, two men Leung Kam Kwok, the person who had the gun and who is the Appellant in this matter, and one Fong Yiu Wah were convicted respectively of murder and of manslaughter having been jointly charged with murder. They had also been jointly charged with attempted robbery at the premises and to that charge they had both pleaded guilty.

6. The only issue in respect of the Appellant at trial was intention. That which occurred was either murder or manslaughter depending on the intention or the lack of it.

7. When the shot was fired there has been evidence that the bullet entered the body of the deceased at right angles and passed through that body almost upon a horizontal, there being a one-centimeter difference between the point of entry and the point of exit. This however does not indicate the trajectory of the bullet when fired from the gun.

8. The gun was a police service .38 calibre revolver which had been stolen from a policeman at an earlier time.

9. Between the witnesses who had been in the outer office and those who had been in the Manager's office there were some differences as to the actual position of the deceased immediately prior to and at the time when she was shot.  Mr. Chong Kan Kwong, who was in the outer office and who had spoken to the two men, thought that the deceased was sitting in a chair at the doorway of the Manager's office prior to the shot. A Mr. Chung said he saw the deceased fall but he was somewhat uncertain as to -

Mr. Tsang, who was in the Manager's office, said that the deceased had stood up and was waiting to leave as soon as her husband had finished a telephone call he was making.  Prior to that she had been sitting on a sofa or small chair. He also said that when she was standing she was blocking the doorway and that the door was open. Mr. Luk Kwun Shek's evidence, he was also in the Manager's office, was generally in line with that which Mr. Tsang had said but in a previous statement to the police, upon which he was cross-examined in the course of the trial, he had said that the deceased had gone to lock the door, He agreed that, having refreshed his memory from his statement, the deceased was attempting to shut the door immediately prior to the shot being fired - presumably as a result of the shout of "robbery" from the outer office. The husband of the deceased said she had been sitting in a chair but he had not particularly noticed where she was immediately prior to the shot. He was, as I have said, in the course of making a telephone call. The 2nd accused, Fong, in evidence said that he could see the people in the Manager's office and, in effect, that the Appellant had a clearer view than he.

10. Mr. Lai Kim Bor, and the second accused, both gave demonstrations as to the manner in which the gun was being held by the Appellant immediately prior to firing of the first shot. The trial judge in his summing-up made reference to this piece of evidence and said:

"If you are satisfied that he fired that gun in the way that was demonstrated by the witness, LAI Kim-bor, and in the way that the 2nd accused demonstrated - they were very similar demonstrations, you may think - if he fired that gun in a horizontal or near horizontal position and at the time he fired it that door of the manager's office was open and he saw people in there, then there could only be one verdict and that would be murder because you would have the inference available to you there that it was almost a deliberate aiming at whoever was in there."

It would appear from the record and from that which Mr. Cagney, who appeared for the Crown both in the Court below and upon this appeal, has said to us that the defence run at the trial concentrated on whether or not the door to the Manager's office was open and whether or not the Appellant could have been aware, when he fired the shot, that there were people in that office who were in a position to be injured by a bullet. This was to an extent reflected in a further paragraph in the summing-up which has been subjected to criticism by Mr. Van Buuren who appeared for the Appellant in this Court. The paragraph reads :

"But even if you did not accept that, if you accepted that the door was open at the time he fired that gun, and that since there were four people in there, in that room, and that since the 2nd accused had seen people in that room, that therefore the 1st accused must also have seen people in that room and fired the gun, again you would be satisfied that the necessary intention to constitute murder had been established and you would have to find him guilty of murder."

I shall come back to what "that" in the first line means in a moment.

11. This is criticized on two grounds. One : that it is too broad and broadens that which was held in Hyam ⁽¹⁾ to be the law and two : that it would appear to usurp the function of the jury by the use of the words "you would have to find him guilty of murder".

12. And there is a further matter which Mr. Van Buuren submits is of greater moment and which has given us some cause for concern. It is this. In a statement to the police, which was in evidence, the Appellant had stated that he "fired upwards", and as a warning shot, his first bullet. In an Answer to Charge, also in evidence, he stated that he had "no intention to kill". It is Mr. Van Buuren's contention that this aspect of the defence which, if properly considered, might have resulted in a manslaughter verdict was never left to the jury. The Appellant did not go into the box.

13. Mr. Van Buuren's stated grounds of appeal are two-fold. One : that "the conviction on the count of murder is unsafe and unsatisfactory in that the learned trial judge erred in failing to explain adequately to the jury the appellant's defence and the possibilities which the defence projected that could reduce in law murder to manslaughter."

14. The trial judge made it quite clear from the very outset that what the jury had to consider was the intention of the Appellant at the time he fired the shot. He put it this way :

"What you will be concerned about - since equally there was no question of provocation - what you will be concerned about are three key issues : (a) Was she killed? (b) Who did the act which resulted in her killing? and (c) Was that act done with the intention either to kill or to do really serious injury?"

Neither of the first two issues was in any real dispute but as the judge said a little later on in the course of the summing-up :

"A much more difficult inference is what was the intention of the person when he fired that gun."

He stressed that it was a very important aspect of this particular case and he gave certain examples of what is intention and made mention that in law intention is given

"an extended meaning and we say in law that a consequence is intended when the doer of an act is aware that that consequence was a likely result of his act."

15. I have referred a few moments ago to two particular passages of the summing-up. These had started with the reference to the firing "upwards" and the trial judge had reminded the jury of that which was said in the statement. He went on to make the reference to the evidence of Lai Kim Bor and to that of second accused as to the horizontal manner of the holding of the gun. It was after this that the disputed passage came. I had indicated that I would come back to the word "that" contained in the first line of the passage. It is Mr. Van Buuren's contention that the "that" must refer to the horizontal position of the gun.  The passage would therefore read :

"If you did not accept (that) the gun was in horizontal or near horizontal position but if you accepted that the door was open at the time he fired that gun, and that since there were four people in there, in that room, and that since the 2nd accused had seen people in that room, that therefore the 1st accused must also have seen people in that room, again you would be satisfied that the necessary intention to constitute murder had been established and you would have to find him guilty of murder."

That passage read in that way would appear to have the Judge say that the simple firing of the gun into the room would be sufficient, knowing that there were people there, to constitute the offence of murder.

16. If that were the meaning of that passage it might, taken on its own, constitute a serious misdirection since the jury might have been prepared to consider the possibility that the accused had genuinely intended to fire well above the heads of the persons in the room without foreseeing that the execution of that intention was likely to miscarry.

17. The "defence" from which that possibility arose came, as I have indicated, from his self serving cautioned statement and his answer to charge both introduced into evidence by the Crown.

18. In Cheng Chui v. The Queen ⁽²⁾ - not cited to us in the course of this hearing - the Chief Justice, delivering the Judgment of the Court of Appeal had this to say at p.57 :

"For these reasons, we take the view that, if we have correctly analysed the English law as being - that a self serving statement admitted at the instance of the Crown is evidence not of the truth of its contents but only of the defendant's attitude at the time - that law ought not to be followed in Hong Kong. Once evidence of a denial has been admitted, it should be mere for a11 purposes. It should be for the jury to attach to it such weight as they think fit, as part of the general evidence which is put before them."

19. In the statements here while admitting that the shot was deliberately fired there was, in effect, a denial of the intention to kill and it was for the jury to give what weight they thought fit to the evidence relating to that denial.

20. But Mr. Cagney says "that" is a reference to the sentence "an almost deliberate aiming at whoever was in there". In the light of that which was said in further directions given by the trial judge in answer to questions posed by the jury we think the interpretation of Mr. Cagney to be the correct one for the trial judge at that time said :

"Finding the 1st accused guilty of an offence does not necessarily mean that there must be equally a verdict of guilty against the 2nd accused for that offence because if you found the 1st accused guilty of the offence of murder, for instance, that would mean that you were satisfied beyond a reasonable doubt that he fired that gun aware that there were people in that small room or likely to be in that room and to be seriously inured by the firing of the gun." (my emphasis)

While the phrase in the earlier passage "would have to find him guilty of murder" is over emphatic manslaughter was very clearly left to the jury. We accept that it would have been preferable had more specific reference been made to the question of the "firing upward" and that which was said in the Answer to Charge and, consequent upon that, the possibility of the lack of intention to kill. But having said that we do not think the jury were left in any doubt as to what the Appellant's defence was and the possibilities arising from it. The first ground of appeal therefore fails.

21. The second ground of appeal reads :

"The defence being one of inadvertent killing during the course of an unlawful act, thus projecting the possibility that the death was caused by a reckless act on the part of the appellant, the jury should have been directed as to the law governing recklessness in cases of murder."

It is further suggested on this ground that the directions to which I have referred, subsequent to the conclusion of the summing-up, were first of all inadequate and second came too late because the jury had already made up its mind as to the verdict against the Appellant and was only concerned at that stage with its verdict against the 2nd Defendant.

22. If I may take the second point first.  Mr. Cagney has very fairly said that it was his impression in the course of the trial that when the jury came back to ask the questions they did, they were concerned mainly with what course they should take as regards the 2nd accused. It is not a concession which we are necessarily prepared to accept. Mr. Cagney said he thought this to be speculation on his part and we think is open to this Court, in the light of the actual form of the questions which were asked and considering that the jury were out for a further two hours - admittedly in part a lunch time period - after those directions were given to say that the jurors had not yet fully made up their minds as to the Appellant's guilt.

23. The evidence was strong in this case.  The Appellant gave no evidence in the course of the trial and Mr. Van Buuren's attack upon the summing-up is based on the contention that two matters which were said by the Appellant in his statement and in his answer to charge raised a defence which was not put to the jury and, further, that which he says is the "broadness" of the directions which were given bearing in mind Hyam ⁽¹⁾.

24. We accept that, generally, the law has bean settled by Hyam ⁽¹⁾ in a case such as this. Lord Hailsham said at p.104 :

"In the field of guilty knowledge it has been long accented both for the purposes of criminal law and civil law that 'a man who deliberately shuts his eyes to the truth will not be heard to say that he did not know it'. (See per Lord Reid in Southern Portland Cement v. Cooper (1974) 1 All E. R. at p.893). Cannot the same be said of the state of intention of a man who, with actual appreciation of the risks and without lawful excuse, wilfully decides to expose potential victims to the risk of death or really serious injury regardless of whether the consequences take place or not?"

Lord Hailsham said further on in his speech :

"(This) is not a revival of the doctrine of constructive malice or the substitution of an objective for a subjective test of knowledge or intention."

Mr. Van Buuren accepts that, had the passage in the further directions to which we have referred come at an earlier stage he would have said it was too broad but he would not have criticized it to the extent that he does. We do not think either of the direction was too broad in the circumstances here. Later on in these redirections there was a further direction as to manslaughter to which no exception, in our view, could be taken.

25. The evidence as to the horizontal holding of the gun was before the jury, as was the "upwards firing" point. Whether or not the deceased was standing up or sitting down at the time of the first shot, and the evidence points to the former, and whether or not the door was wholly or partially open it was clear that she was within the Appellant's view. If the Appellant were prepared to deliberately fire a gun, and the evidence as to that was undisputed, in those circumstances the jury were entitled to come to the verdict they did.

(1)    [1974] 59 Cr. App. R. 91

(2)    [1980] H.K.L.R. P.50

Representation:

Brian van Buuren Esq. (D.L.A.) for Appellant.

John Cagney Esq. for Crown/Respondent.