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Fung Chun-wai v. The Queen

Case No.CACC 1117/1981
Court
Court of Appeal
Date09 Mar 1982
Judge—
Case Document
100%

CACC001117/1981

Murder - quarrel in restaurant after some heavy drinking - Judge's direction sufficient in relation to intent - not improper for judge to leave to jury question of accused's capacity to form the necessary intent provided they are also told that the ultimate question is whether in striking the fatal blow, the accused did actually have the necessary intent - appeal dismissed

IN THE COURT OF APPEAL 1981, No. 1117
(Criminal)

BETWEEN

FUNG Chun-wai

 Appellant

AND

The Queen

 Respondent

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Coram: McMullin, V.-P., Li and Silke, JJ.A.

Date: 9 March 1982

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J U D G M E N T

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McMullin, V.-P.:

1. The appellant appeals against his conviction of a count of murder. The circumstances are briefly as follows.

2. A young man by name Ma was visited by two friends, one called Chau and one called Kwan, on the evening of the 22nd January, 1981. Chau and Kwan left his premises after an interval spent in his company and went down into the street. The area is in the vicinity of Wong Chuk Hang Estate. While they were there, they encountered their friend Ma again and according to two of them, the three then went to the Sai Wu Noodle Shop at about 10 p.m. One of their number suggested that they met some of the persons whom they were later with in the noodle shop in the street near the shop, but the evidence of the other two appears to be that they encountered them only after they went into the noodle shop.

3. When these three young men entered the shop, they sat at table number 10. At that table, according to the preponderance of their evidence, were already seated the accused and a man called Wong. After about half an hour, they were joined by another man called NG Cheung-shing and a few minutes after that, they were joined by the deceased.

4. There is some evidence that the accused had drunk some beer at this stage. Shortly after the two latest arrivals joined the party, Wong went out and fetched a large bottle of Remy Martin brandy. These young men continued in each other's company for some time thereafter, and the bottle of brandy was freely resorted to. One of the witnesses said that by the time it was finished, most of them were somewhat the worse for wear but those who were most affected were Wong and the accused.

5. Some time shortly after the accused had joined the company, he had produced a watch which was passed around amongst the young men for inspection. It appears that this watch did not belong to him but to a friend of NG Cheung-shing and that NG Cheung-shing had been contacted by that friend earlier in the day and had been asked by him to take steps to recover the watch. That accounted for Ng's presence on this occasion.

6. There was some talk about selling the watch to smugglers but nothing definite transpired as a result of that. The drinking went on and the watch upon being passed around was pocketed by Kwan. No reason is given for that, and a short time after that, Wong was very drunk and he was assisted from the premises by Ng, Kwan and Chau. That left the deceased and the accused and Ma at table number 10.

7. Up to this point, it appears that there had not been any trouble, though there had been some conversation of a rather indefinite character in the course of which the deceased rebuked the accused on the grounds that the latter had, as he said, hit some of his, the deceased's, brothers on a previous occasion. That, however, did not appear to cause any breach of the peace and it was only after the departure of the four other people that the trouble started.

8. The immediate occasion of it was a demand by the deceased for the return of his watch. Ma intervened to say that Kwan had the watch but the deceased would not accept this. He thought the accused still had it. The matter waxed hot and some strong and foul language was used by the accused, although one of the witnesses, a waiter called Leung, professed to have overheard both men using bad language. What is clear is that, very shortly after that, they resorted to fisticuffs and blows were exchanged between them. Suddenly, the accused broke off and ran to a shelf over a refrigerator, close to the entrance of the shop, where he found a chopper. He picked it up and came quickly back to table 10 where the deceased was still stationed in a standing position.

9. The evidence for the Crown was that this immediately caused a scene of great confusion in which everybody in the premises including the other customers ran out to get away. This included the manager, Leung, and another man also called Leung, a waiter, who gave evidence.

10. Ma also left the premises because an attempt by him to intervene had proved useless. He told the court that before he actually got outside, he had looked back and had seen the accused strike at the arm of the deceased with the chopper. That was the only blow witnessed by any of the persons who had been present in the restaurant.

11. The manager, Leung, fetched the police, who arrived a short time later, to find the deceased stretched out moribund upon the floor. He had received a slight blow to the left arm which caused a wound of no great consequence but the injury which caused his death was a gross injury to the left side of his neck which had pierced the outer tissues and the carotid artery and actually penetrated as far as the spine causing some damage to one of the vertebrae. The pathologist's evidence was that the chopper, which was produced, could have caused this injury.

12. The defendant was not captured that night. He was on the loose for about a month and then he surrendered to the police. He made a statement to the police which was introduced in evidence. He did not give evidence.

13. In that statement, he referred to the row which started over the wristwatch, but the statement indicates that the trouble was really caused by the deceased who had professed to be a triad member and was endeavouring to put the appellant in his place. They swapped blows, according to his statement, and he warded off the blows of the deceased. Then some of the deceased's friends took up stools and other things. He could not see clearly what they were. He was very frightened and wanted to go away but seeing a knife at the roast chicken section of the restaurant, he picked it up and turned round. At that stage, somebody dashed up and threw his arms around him and they fell to the ground together. He heard somebody shout "there is blood; a person is chopped." He was very frightened and went away to avoid being hit. In the statement, it is said also that he had drunk wine and that he hoped the judge would convict him of a lighter charge. That is the material part of this statement.

14. Mr. Hoosen, who has laboured valiantly against some headwinds from the Bench, presents two grounds of appeal. We did not call upon the Crown to reply in relation to the first of those grounds in which it is suggested that the direction upon provocation was defective. That suggestion was supported by reference to the idea that after the first blow which struck the deceased upon his arm, there was an interval of time, during the course of which, observed by none of the witnesses, further incidents might have occurred. It is said that the judge, in his summing up, was wrong to direct the jury in these terms:

"If you think that the defendant may have been provoked by the false allegations of theft and the subsequent fight, together with what went on before, you will give these matters serious consideration in deciding whether a reasonable person might have lost control and behaved as the defendant did."

15. The general directions upon provocation are said to be unexceptionable but Mr. Hoosen's suggestion is that in directing the jury as he did in this passage, the judge may have diverted their minds from considering anything that might have occurred after the blow observed by Leung was struck and which may have included other incidents capable of amounting to provocation. The judge, however, referred to the broken crockery which is visible in the photographs and the overturned table and, prior to the direction which I have referred, he said:

"Did the defendant then immediately strike the blow that killed the deceased, or did something else happen that we don't know about? Do you think the crockery was smashed and the table overturned by customers leaving the shop or some other agency?"

We are satisfied that that direction, coming immediately before the direction to which exception is taken, left it clearly in the jury's mind that they must consider the entire event including anything that might have been put before them in the photographs and otherwise and that they would not have overlooked the possibility that something else might have occurred. As to that, it may be said that there is simply no evidence at all to support the idea that there was an interval between the striking of the first blow and the striking of the second blow in the course of which something might have transpired which would have amounted to provocation.

16. The main ground of appeal raises a point of some interest. At page 135 of the record, the judge, dealing with the question of the drink which had been taken and the effect which it may have had in relation to the act of the defendant and the intention requisite for a murder charge, said as follows:

"Now, members of the jury, you may say 'But, surely, anybody who strikes a blow with such a lethal weapon causing such an injury cannot have intended anything else' - that is to say anything else than grievous bodily harm - well, in this connection you must consider the question of drink. Was the defendant so drunk that he was not capable of forming, and did not form, the intention to cause serious bodily harm?"

17. Before I turn to consider the cases which have been cited to us, it is necessary to point out that that direction must be situated in the context in which it occurs. Immediately prior to the words which I have quoted, the judge said:

"Finally, did the defendant, at the time he struck the fatal blow, intend to kill or cause serious bodily harm?"

and immediately after the passage which I have first quoted, he said:

"It is not the evidence that the defendant had reached that stage of intoxication that he had absolutely no idea what he was doing and, therefore, like a man who was temporarily insane, not responsible for his actions. He obviously was not as drunk as that, no. But it is submitted that, although the defendant realized that by striking the deceased with the chopper he might hurt him, he did not realise it would injure him so seriously, and he did not so intend."

18. Mr. Hoosen has referred us to the case of Regina v. Garlick(1). This was a case of murder in which the accused in a drunken fit had gravely assaulted the deceased and had stamped upon his neck causing his death. The trial judge directed the jury in terms which appear upon page 293 and I shall not repeat those terms in full. It is plain that he directed them in the sense that the jury must consider whether there was any reasonable doubt as to the accused's capacity to form the necessary intention, i.e., the intention to cause death or grievous bodily harm.

19. Counsel for the appellant in that case referred to the cases of Sheehan & Moore(2) and Pordage(3) and he made the submission that the direction, restricted as it was to the question: did defendant have the necessary intent in view of his condition of drunkenness, was a faulty direction. The court of criminal appeal agreed with this submission, and at page 294, in delivering the judgment of the court, the Lord Chief Justice said:

"The result was that the jury, if they were paying attention to this direction, as we must assume they were, and as they no doubt were, would be asking themselves whether or not this man was capable of forming the intent to do really serious bodily harm and as to that, on the facts as we have briefly outlined, there is only one possible answer. But they were not invited, as they should have been, to answer the real question, the one I have already pointed out, namely may this man, by reason of the drink he had taken, not have formed the necessary intent."

20. A very brief report of the case of Pordage(3) appears in the Criminal Law Review at the page cited. The facts need not concern us. The charge was murder and a direction to the jury was in somewhat similar terms to that given in Garlick(1). Pordage(3) was a case of grievous bodily harm. The decision of the court is recorded as follows:

"Held, the court agreed with what was said on the point in Sheehan and Moore. Applying it to the present case the jury were wrongly invited to consider the question of the capacity of P to form the intent. However the evidence was overwhelming and the proviso would be applied and the appeal dismissed."

21. In the commentary to that case, the editors say as follows:

"Since this was a charge under section 18 of the Offences Against The Person Act requiring an intent to cause grievous bodily harm, it was, on any view, a crime requiring a "specific intent" and so the jury were therefore required to take into account the evidence of drunkenness in deciding whether P had such an intent.

In Sheehan the court did not find it necessary to express a concluded opinion on the argument that the question was not whether the defendant had the capacity to form the intention but whether he in fact formed the intention. The present case, however, does decide this important point and is greatly to be welcomed."

22. In Sheehan(4) which was a murder case, the court substituted a finding of manslaughter for the jury's verdict of murder. In that case, again, the trial judge had directed the jury in terms of the capacity of the defendant to form the intent in reference to his condition of drunkenness. At page 964, Lord Justice Geoffrey Lane, giving the judgment of the court, says:

"In the light of these changes in the law since 1920 we think that great care must be exercised when citing the opinion in Beard's case at the present time. Indeed, in cases where drunkenness and its possible effect on the defendant's mens rea is an issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.

Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent."

23. It may be accepted that the form of direction there indicated is a proper form of direction. But in none of these three cases is anything said by the Appellate Court to indicate that a reference to the capacity to form the intention must be improper in circumstances such as those with which the courts were confronted in those cases and with which this court is now confronted. Indeed, as Mr. Plowman for the Crown has rightly said it is very difficult to see how a jury could turn to consider the question of whether or not the defendant in any case had, in fact, formed the necessary intent without considering his capacity to form such an intent. What is clear, however, is that in addressing a jury, a judge must now be careful to distinguish these two points. While it is not improper for him to refer to the capacity of the accused and to invite the jury to consider what his capacity to form any intent was at the time of the act, in relation to their opinion as to his condition of drunkenness, he must go on to make it clear to the jury that the final question for them to decide is whether or not, in fact, the defendant in the circumstances before them did form the necessary intent. The passage to which I have referred in the summing-up of the trial judge, although it is somewhat compressed and might, perhaps, it has been expanded a little, differs from the summing-up in the passages complained of in Garlick(1) and in Sheehan(4) and, so far as we can tell, from the direction complained about in Pordage(3), in that the judge did specifically refer to the actual intent of the defendant when he said the words which are underlined in the transcript, "and did not form the intention to cause serious bodily harm."

24. We are satisfied that the underlining which appears in the transcript must reflect the emphasis given by the judge to that factor when he was addressing the jury.

25. Mr. Hoosen has ably argued that the form of the direction is faulty in that these words, coming as they did immediately after the reference to the capacity to form the intent, may have left the jury under the impression that the important thing for them to decide was whether the capacity to form that intention was present and that once having considered that matter, they might not have thought it necessary to consider whether or not, in fact, the intention was formed, so that if it were possible that they thought that he had the capacity to form the intention, they might not have gone on to consider whether notwithstanding that degree of capacity he, nevertheless, did not form the intent.

26. It seems that the task of a trial judge is not rendered any easier by some of the latest developments in the law on this matter. It is difficult to see how the capacity to form an intention to cause death or grievous bodily harm can be easily separated from the actual intention of the accused at the time the act was done. Nevertheless, as it stands, it would seem that the law does require a trial judge to make it plain, if he is referring to capacity to form an intent, that that is not the primary question and that the vital question is the actual intent of the defendant at the time. But the form of words used, coupled with the passages I have recited coming immediately before and after this direction, seem to us to render this direction in this case unexceptionable.

27. It is not even, therefore, a case in which we would have thought it necessary to apply the proviso notwithstanding the arguments of counsel. We are satisfied that there is no substance in that ground of appeal and the appeal must, therefore, be dismissed.

(1) 72 Cri. App. R. at page 291.

(2) (1975) 60 Cri. App. R. at page 308.

(3) (1975) Cri. L.R. at page 575.

(4) (1975) 2 All E. R. 960

Representation:

Mr. A.A. Hoosen (D.L.A.) assigned for the appellant.

Mr. G. Plowman, Crown Counsel, for Crown/respondent.