Cheng Wing-fei v. The Queen
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CACC000112/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 112 OF 1974 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 10th April 1974. ----------------- JUDGMENT ----------------- 1. This is the judgment of the court. The appellant, CHENG Wing-fei was charged with the murder of WONG Fat-nip and with two offences of wounding with intent to do grievous bodily harm contrary to section 17 of the Offences against the Persons Ordinance, Cap. 212. He was convicted of murder and of one of the wounding charges, the victim being YUNG Chi-sheung; he had already pleaded guilty to the second charge of wounding, the victim being LAU Wah. He was sentenced to death on the murder charge. The sentences on the two wounding charges were "respited". The appellant appeals against the conviction on the murder charge and the wounding charge to which he did not plead guilty. 2. These three charges arose out of an incident which occurred on the night of February 28th, 1973 at No. 20 Yen Chau Street, Kowloon. 3. On the ninth floor of these premises there was a call girl establishment. It would appear that the group which ran this establishment had forcibly taken into their employment a call girl who had been working for a rival establishment. Some members of the rival establishment therefore raided No. 20 Yen Chau Street-to recover the girl. A fracas ensued as a result of which WONG Fat-nip was killed and LAU Wah and YUNG Chi-sheung were wounded. 4. In this judgment I shall refer to the persons who operated the call girl establishment at No. 20 Yen Chau Street as 'Group A' and their rival as 'Group B'. The appellant was a member of or associated with Group B and the three victims were members of Group A. 5. The story of the prosecution is this. On the night in question two members of Group A, a Mr. Tsoi and a Mr. Tong, returned to the ninth floor of No. 20 Yen Chau Street and took the lift to the ninth floor. When the door of the lift opened they were met by some seven members of Group B. These men were armed and tied up Mr. Tsoi and Mr. Tong. They made Mr. Tsoi press the bell to the call girl establishment at knife point. One of the inmates inside the call girl establishment looked through the peep hole, recognized Mr. Tsoi as a member of Group A and opened the door. Immediately several members of Group B rushed in and started to strike at the men they found inside. Mr. Tsoi, his hands still being bound, was pushed into the room with them and was an eye-witness to what occurred. 6. At the time there were five members of Group A in the flat, two of whom were women. About six or seven members of Group B, of whom the appellant is one, entered the premises and all were armed. The members of Group A were taken by surprise. Two of the men were in the sitting-room watching television and one was asleep in the adjoining bedroom. There is no evidence that any members of Group A were armed. 7. There was evidence that the appellant struck WONG Fat-nip, giving him a wound from which he subsequently died. Another of the attacking group also wounded him. LAU Wah gave evidence of this and also of the fact that the appellant struck him. LAU Wah is the victim in the wounding charge to which the appellant pleaded guilty. 8. There was also evidence that YUNG Chi-sheung was wounded by the same persons who had wounded WONG Fat Nip, of whom the appellant was one. YUNG Chi-sheung is the victim in the second wounding charge and is the man who was asleep at the time of the commencement of the incident. 9. The wounds inflicted on the victims were of the greatest severity. 10. In each of the three charges three other persons are named as having been concerned with the appellant. These persons were not before the court. I mention this because the identification of the appellant was not in issue. Various members of Group A knew the appellant and the other persons named in the charges to be member of Group B. 11. In addition, the appellant did not deny that he was at the premises and that he was armed with an iron ruler. He said that earlier that evening he met some friends and he was invited by one of them to go to the premises but only for a discussion. This man explained that Group A had taken away his girlfriend and he wanted her back. However, the appellant said that his friends distributed weapons amongst the other members of the Group and he warned them that there might be a fight when they reached the premises. He himself received an iron ruler. The appellant accompanied the others to the premises. He remained outside where he saw Mr. Tsoi and Mr. Tong already tied up. He saw the other persons enter the premises. After a very short time he heard fighting so he himself went inside. He saw LAU Wah inside holding a stool. He said LAU Wah tried to hit him with it so he defended himself with the iron ruler which he had in his hand. 12. The real defence of the appellant was that although he was in a fight with LAU Wah he had nothing to do with any attack on WONG Fat-nip or YUNG Chi-sheung. He in fact had no common intention with the members of Group B to wound or kill. He only struck LAU Wah after LAU Wah had tried to rush him with a stool. 13. The trial judge put the issue of common intent clearly before the jury. Various grounds of appeal were filed. For the most part, these detailed alleged discrepancies in the evidence of the various witnesses called for the prosecution. The whole incident took place in a very few minutes. It was a very exciting incident and it was not surprising therefore that one witness gave a different version of a particular part of the incident from another. However, this was clearly pointed out to the jury by the judge and when the so-called discrepancies were examined it clearly appears that where there was a discrepancy it was as to a trivial matter and moreover one that was only to be expected from an incident such as the witnesses were describing. 14. The appellant also complained that the judge did not deal with the case for the defence as fully as he had done for the case for the prosecution. The summing-up was given the day after evidence had been given by the appellant. It was therefore fresh in the minds of the jury and the judge most carefully stated what the defence was and what would be the result if the jury believed that defence. I can find no fault here. After the summing-up the jury asked the judge for further directions on two points. Great play was made at the hearing of the appeal at the way in which these were answered. For the appellant it was suggested that the answer given by the judge to the questions might have been understood by the jury in a sense which deprived the appellant of a possible verdict of manslaughter. What the jury wanted to know in the first instance was whether, should they be divided as to five or six in favour of guilty of murder and the remainder in favour of guilty of manslaughter, they ought thereupon to return a verdict of not guilty of murder but guilty of manslaughter, that being the highest common factor. The second question similarly raised the point whether, if five of them thought the accused to be guilty of murder (the others being for acquittal), they must necessarily be taken to think him guilty of unlawful killing and therefore of manslaughter, so that in the absence of unanimity a verdict of not guilty of murder but guilty of manslaughter would automatically follow. The learned judge's replies leave some doubt whether he really understood the questions, but what he said was not incorrect. The fact remains that the jurors who had apparently been doubtful about the accused's guilt of murder were subsequently persuaded by the others. We do not think this can have been in any way because they were led to believe a manslaughter verdict was not open to them in circumstances in which it was open. 15. In the event this appeal is dismissed. Representation: Mumford (Director of Legal Aid) assigned for the appellant Natullah, C.C., for Crown/Respondent. |