Chan Ming Alias Chan Yiu-shun v. The Queen
|
CACC000640/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 640 OF 1975 -----------------
----------------- Coram: Full Court (Huggins, McMullin & Pickering, JJ.) Date of Judgment: 31st October, 1975. ----------------- JUDGMENT ----------------- McMullin, J. : 1. The applicant applies for leave to appeal against his conviction for murder. 2. The case for the Crown was that the defendant and another man were observed by LI Chi-keung, a resident on the 3rd floor of Camelia House in the So Uk Estate who, as he returned to his own premises, saw them behaving in a way which caused him to pause and observe them. It appears that they resented this and after some heated verbal exchanges they assaulted him. This behaviour coupled with the fact that they were strangers caused him to shout out "robbery" very loudly and a number of his neighbours upon that floor then emerged from their rooms to see what was going on. The defendant and his companion were then questioned about their purpose there and they at first pretended that they were police officers but when challenged to produce identification they both took to their heels. The defendant's companion succeeded in getting away but Li who was among the pursuers succeeded in catching the defendant round the neck. There was a brief struggle and the defendant broke away and ran on pursued by about ten people. He slipped and fell but got up, ran on until prevented by another of the neighbours, LO Po-fu. At this point he produced a knife and was about to run away when the deceased who had been amongst the pursuers seized him from behind, wrapping both his arms round the defendant's body. The defendant twisted round inside this embrace and succeeded in stabbing the deceased with the knife in the abdomen piercing his liver and causing the injury from which he died. The appellant was then subdued and handed over to the police who shortly came upon the scene. Subsequently the defendant made a statement under caution which was in the following terms:
3. The defendant gave evidence at the trial. He admitted going to Camelia House with a friend but said that they were searching for an acquaintance. He admitted that he had assaulted LI Chi-keung because of what he regarded as the latter's insolent behaviour. He said that when the neighbours came out of their rooms upon hearing the cry of robbery they were all armed with a variety of weapons including wooden poles, broom-sticks and water pipes. He said that they all appeared very angry and he tried to apologise to them. However this crowd approached himself and his companion in a hostile way and his companion ran off. He was then assaulted by a number of persons and fell to the ground. He was kicked while he was on the ground but he managed to get up and run away and they pursued him shouting "beat him". He then observed some eight or nine people ahead of him towards the other end of the corridor. These also were armed with similar weapons but one of them had a knife. The defendant denied that he himself had a knife or any other weapon. He said that he was scared but managed to snatch the knife from the man who was holding it. Then another man (in fact the deceased) snatched the knife from him but he succeeded in re-possessing himself of it after a struggle. Having got the knife he shoved the deceased away with his foot and then lost balance and fell. In view of the defence put forward on his behalf by Mr. Ming Huang, who also represented him in this court, it is of some interest to give in his own words what happened thereafter. First of all in examination-in-chief he said:
Later he went on to say that after he came to he was being pressed by several people who pushed him against the wall and he was assaulted. He was then asked:
That is all he said in examination-in-chief about the actual incident in which the deceased received his injury. In the course of cross-examination his statement to the police was put to him, in particular the sentence:
He was being asked to explain this admission and the note of evidence goes as follows:
Later he was asked by the court whether the admission in his cautioned statement that he had stabbed the deceased once was correct or not and he replied:
and when the court asked him what was wrong in his statement he replied:
In view of that evidence it seems remarkable that counsel for the defendant should have seen fit to present his client's case throughout the trial on the basis of self-defence. Nevertheless we were informed that that is how the matter proceeded and it was left to the learned Commissioner, who was himself obviously somewhat surprised by the line being taken, to point out to the jury that the accused's substantial defence was not self-defence but accident. We realise that counsel may sometimes be placed in an awkward situation by a client who gives unexpected evidence. Where a defendant's evidence appears substantially to contradict the defence which counsel was proposing to rely upon we do not think it proper for counsel to persist in presenting that defence as though it was the sole issue in the case, which is what we understand happened here. Of course, it is always proper for counsel, whatever particular line of defence is being pressed, to invite the jury in considering the evidence as a whole to have regard to alternative possibilities suggested by it should they be satisfied that the principal defence is not sustainable. The jury might well have been very mystified in the present case had the learned Commissioner not pointed out to them the true nature of the defence put forward by the defendant himself. Had he not done so he could no doubt have been accused of a material non-direction. He then went on to deal with self-defence which, rightly in our opinion, he regarded as the alternative and subordinate issue. We think it did remain an issue by reason of the fact that, although the defendant himself said nothing to the court which could have sustained such a defence, there was in evidence before the jury his statement to the police in which he had suggested that he was defending himself. That justified the putting of the issue to the jury but it scarcely justified counsel in presenting it as the sole issue in the case. It may be noted that in McInnes v. R.(1) where a somewhat similar defence situation had arisen, the defendant alleging accident and counsel urging self-defence, the Court of Appeal while commenting on the oddity of that situation, nevertheless regarded the procedure of counsel as understandable in all the circumstances. There appear to be two distinguishing marks which set that case apart from the present case. In the first place, Mclnnes, having made a statement to the police in which he admitted stabbing the deceased ("I let him have it"), never retracted that statement and merely said that he could not explain what he had meant by this phrase on which the Crown relied. The defendant in the present case retracted his police statement. Secondly, although the report is not explicit on the matter, it would seem likely that counsel did deal with all the possible defences which might have been raised, thereby accommodating as best they could the defendant's testimony within the framework of the possibilities open to the defence as a whole. 4. It is said however that the directions given to the jury in respect of the issue of self-defence were wrong in law. The objection is that those directions favour an objective rather than a subjective test. As we understand it what is meant by this is that the jury were invited to decide the issue of self-defence by reference to the question whether, in all the circumstances, it was reasonable for the accused to have acted as he did rather than by reference to the question whether the defendant himself believed that it was necessary for him so to act. Counsel relies in this regard upon the decision of the Court of Appeal in Palmer v. Reg.(2). The terms objective and subjective are not referred to in that decision any more than they were referred to by the learned Commissioner in the present case and we think for good reason for they are often slippery stones under a lawyer's feet. What the trial judge said in directing the jury in that case, and what the Court of Appeal said subsequently, amounts to very much the same thing and it is summarised in the words used by Lord Morris in the course of a series of terse and commonsense observations on the nature of a series of terse and commonsense observations on the nature of the defence of self-defence, where, at page 242, he said:
No doubt Mr. Reid is right when he said that the test is partly subjective and partly objective inasmuch as a jury must decide, firstly, whether, in retaliating in the way he did, a defendant actually believed that he was compelled to act so in order to preserve himself from grave harm; and, secondly, whether in all the circumstances that belief was reasonable. Whatever may be the truth about that we are satisfied that the several passages in the summing-up to which objection was taken upon this court could not have left the jury in any doubt that they must consider (a) whether the accused, in doing what he did, was acting in self-defence; and (b), whether in all the circumstances it was reasonable for him so to react. In considering the possibility of self-defence the jury, quite apart from a consideration of the deceased, had before them the retraction upon oath of an unsworn statement to the effect that the appellant had stabbed the deceased in circumstances which might possibly have amounted to self-defence and had, on the other hand, no vestige of evidence from the appellant in the witness-box to support the suggestion of self-defence. In those circumstances we think it impossible that the jury should have come to any other conclusion than that which they reached in regard to the issue, if such it can be called, of self-defence. 5. Then it is said that the learned Commissioner misdirected the jury by telling them that the defendant had not been beaten up by the hostile crowd and that, in this connection, he failed to draw to their attention the evidence of the doctor who first examined the appellant but contented himself with reminding them of the evidence given by the specialist medical witness who later examined the defendant. It is true that this evidence, which was put in at the request of the defence, indicated the presence of two bruises, and also a swelling on the back of one of the defendant's hands, to which the judge did not make reference. However this is not in our view a material non-direction since the entire body of medical evidence, taken at its highest in favour of the defendant, amounted to evidence of very minor injury of a kind which fully justified the learned Commissioner in proposing to the jury that the appellant had never actually been beaten up, in the way in which he had described, by a large number of persons using dangerous implements. 6. A further complaint is that the learned Commissioner misled the jury by telling them in the course of the summing-up that the accused's final accident version was never put to the principal witness, LI Po-fu, at all. There was some substance in that complaint although counsel for the defendant did put to the witness a considerable portion of the story later told by the defendant to the court. Nevertheless what the judge said was essentially true because it was never suggested to the witness in cross-examination that the fatal injury was not the result of an intentional stabbing at all but the result of the deceased's falling forward upon a knife held by the defendant. 7. Then it is said that the learned Commissioner misdirected the jury by telling them that the defendant had not been beaten up by the hostile crowd and that, in this connection, he failed to draw to their attention the evidence of the doctor who first examined the appellant but contented himself with reminding them of the evidence given by the specialist medical witness who later examined the defendant. It is true that this evidence, which was put in at the request of the defence, indicated the presence of two bruises, and also a swelling on the back of one of the defendant's hands, to which the judge did not make reference. However this is not in our view a material non-direction since the entire body of medical evidence, taken at its highest in favour of the defendant, amounted to evidence of very minor injury of a kind which fully justified the learned Commissioner in proposing to the jury that the appellant had never actually been beaten up, in the way in which he had described, by a large number of persons using dangerous implements. 8. Finally it is said that the learned Commissioner was wrong in law in that he failed to direct the jury to consider the issue of provocation. It is again common ground that counsel for the defence never suggested such an issue either to the judge or to the jury. Nevertheless the complaint constitutes, as Mr. Reid concedes, the only objection of real substance in the case. It is settled law in this territory that it is the duty of the judge, where the jury is concerned with a charge of murder, to direct them as to the possibility of a verdict of manslaughter if there is any material which would justify that verdict even though the issue has not been raised by the defence and even though it may be inconsistent with the defence which actually has been raised. [WONG Kwok-wing v. The Queen (1967 H.K.L.R. 719) citing R. v. Bullard (1957 A. C. 65) and R. v. Porritt (45 C.A.R. 348)] The primary question is, therefore, whether there was sufficient material to found such a plea. If there was evidence of provocation sufficient to put to the jury then, since it was not left to them, that defect is not one in respect of which we could legitimately in the circumstances of this case apply the proviso to Section 83(1) of the Criminal Procedure Ordinance. Insofar as there was abundant evidence, even apart from what the defendant himself said, to show that the defendant was somewhat roughly handled and that he must have received some blows it must be said that there was evidence of a provocative incident and that the jury should therefore have been left to consider whether the defendant was in fact not the master of his mind when he struck the fatal blow. We have given this matter the most serious consideration and although the jury might very well have rejected any such contention (especially in view of the fact that the defence never suggested anything of the sort) we have come to the conclusion that there was a question which should have been left to them to decide. It was not a case in which, had provocation been expressly raised, the judge would have been justified in withdrawing that issue from the jury. The defendant's contention was that he had gone to the premises in search of a friend. One might well entertain suspicion, as the witness Li evidently did, concerning his purpose there in view of the lateness of the hour and the behaviour of himself and of his companion. Nevertheless it must be assumed in his favour that he had not gone there with any felonious intention. He admitted that he had assaulted Li and his behaviour fully justified any belief the latter may have held that he was indeed in the presence of persons intent upon robbery. However, upon the evidence the defendant was not a robber and the cry of "robbery" which alerted the neighbours and brought them into the corridor is one of a peculiarly emotive significance, given the time and the place and the fears which in the experience of the courts, too often beset the inhabitants of these large dwelling complexes. We start therefore from the fact that the defendant was being pursued for something he had not done by a very large crowd of residents who might reasonably be expected to be greatly incensed by his very presence there. Of course the crowd had a good right to arrest and detain him because, even upon his own story, he had committed an offence upon the premises. In doing that they were entitled, however, to use no more force than was necessary to secure him; any violence of a purely punitive nature which may have been inflicted over and above that need would itself have been unlawful. There was some evidence, even from the Crown side, that the defendant was roughly handled. Although the witnesses, most of whom were cross-examined at considerable length, maintained that the only purpose of the crowd were shouting "beat him". Had the defendant indeed been a robber we think it would have been more difficult to have put forward a plea of provocation and it might not have been proper to leave that issue to the jury because it would then have fallen within the category of "self-induced provocation" which was dealt with by the Privy Council in Edwards v. The Queen(3).The question then would be (conformably with the first of the three principles laid down in that case) whether any violence done to him as a result of his felonious behaviour would have been a predictable result of that behaviour. In such circumstances he might well expect (to quote the actual words of the opinion of the Board on the point): "vituperative words and even some hostile action such as blows with the fists". If that had been the situation then it would have been difficult to say that, even on the defendant's own story, the hostile reaction of the crowd had gone to such extreme length as to constitute provocation (the second of the two principles laid down by the Board ). Even then it might be difficult to say that that would not constitute one of those cases in which there was " a question of degree to be decided by the jury" (the third of the three principles laid down by the Board). The situation here was that there was evidence: (a) that the appellant and his companion were being pursued for something they had not done; (b) that he did bear signs of injury which could have resulted from his having been beaten at least with fists; (c) that it was the intention at least of some of the crowd to catch him and beat him and not merely to arrest him. In those circumstances we do not find it possible to say that there was no evidence to go to the jury of a provocative incident. Neither can it be said, in view of the evident eagerness of the defendant to make his escape and his production of the knife only after being seized by the deceased and after several prior forceful attempts to arrest him, that his blow could not have been struck as a result of a complete loss of self-control. We cannot accept Mr. Reid's argument that there was nothing in the Crown's evidence to substantiate either a provocative incident or a loss of self-control and that since the jury had evidently rejected the defendant's plea of self-defence, they must have rejected his story of gross maltreatment also. The jury were not obliged to accept either story in full. They may well have decided that although the defendant was not "beaten up" he did receive somewhat more in the way of maltreatment than the prosecution witnesses were willing to admit. But in any event, even upon the Crown's evidence, there was something to show that the crowd intended to exceed its rights of lawful arrest. In all the circumstances we think there was evidence to go to the jury on the question of provocation and that they ought to have been directed upon the point. Not without reluctance we have come to the conclusion that the appeal must be allowed to the extent that the conviction of murder must be set aside and, treating this application as the hearing of appeal we so order and substitute for the verdict of the jury a finding of guilty of manslaughter and we will hear counsel upon the question of sentence. Representation: Ming Huang (D.L.A.) assigned for Appellant. Reid for Crown/Respondent. (1) 55 C.A.R. 551. (2) 55 C.A.R. 223. (3) (1972) H.K.L.R. 301. |