Tse Yung Tim and Another v. The Queen
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CACC000709/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 709 OF 1973 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 28th November 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The two Appellants appeal against their convictions on one count of murder and two counts of wounding with intent to do grievous bodily harm. The case arose out of a dispute concerning a girl who had been living with a man named SO Kuen. This girl had come under the control of a man named Tai Pau and SO Kuen sought to obtain her release. To this end he assembled and armed a number of men to call upon Tai Pau. It was in dispute whether the Appellants were from the start among this party of visitors or whether they joined it when it was on its way to the flat at 20 Yen Chow Street, 9th floor, where it was believed the girl could be found. However, it was common ground that when the party reached that flat the Appellants were with the others. The case for the prosecution was that an associate of those inside the flat was forcibly induced to approach the door with the object of having it opened by those in the flat and that when this ruse succeeded the whole party rushed in and attacked the occupants with melon knives. One of the occupants was killed and two received serious injuries. There was no evidence that either Appellant struck the Deceased but there was evidence that the first Appellant struck both the other victims and that the second Appellant struck one of them. Their story was that they had gone merely "to reason with" Tai Pau and that they were attacked by those in the flat. 2. The first point argued was that the learned judge misdirected the jury when he said:
Although counsel for the Crown has submitted that this was not a misdirection, we think it clearly was. Evidence fit to be left to the jury that either of the Appellants struck either of the fatal blows (or, indeed, any blow at all upon the Deceased) was not "small" or "very small": it was non-existent. Of course there was a possibility that each Appellant struck one of the fatal blows. If that had been proved it might have been unnecessary for the jury to consider the question of a common intent, but counsel rightly contends that unless it was open to the jury so to find then a conviction of both would have to be based at least in part upon a finding of common intent and that the passage we have cited suggested the contrary. 3. In the alternative counsel for the Crown submits that this is a proper case for the application of the proviso to s.83(1) of the Criminal Procedure Ordinance. He says that although there was a possibility that the jury might, acting upon this direction, have found that one or both of the Appellants struck a fatal blow, that possibility was so remote that it could be ignored. Earlier in his summing-up the learned judge had said:
As we understand it that was at its weakest an invitation to the jury to base their decision upon the existence or absence of a common intent, but on behalf of the first Appellant it is in effect contended that use of the word "direct" at this point prevented that direction from being prayed in aid to negative the subsequent misidrection. Counsel for the Crown submits that the evidence pointed overwhelmingly to the existence of a common intent and that if the jury thought the Appellants' story, that they went to the flat merely to reason with Tai Pau, might possibly be true they would in all the circumstances of the case inevitably have acquitted. The second part of this argument necessarily depends upon the first. What we think we have to ask ourselves here is whether there is a real danger that the jury returned their verdict on the murder count upon any basis other than that of a common intent: unless we can be sure that there is no such danger we cannot say that they would inevitably have come to the same conclusion had they been correctly told that their decision must rest upon a common intent. Looking at the case as a whole, and particularly bearing in mind that the case for the prosecution was never presented on the basis that the Appellants struck the fatal blows, we have come to the conclusion after most anxious consideration that no substantial miscarriage of justice has occurred as a result of the misdirection. 4. The other matters advanced on behalf of the Appellants can be disposed of quite briefly. It is said that there are passages in the charge to the jury which tended to negative the general direction, which it is conceded was correct, concerning the onus of proof. The complaint rests upon the use of the phrases "if you accept" the story of the Appellants and "if you thought" and "if you felt". In some contexts the words "think" and "feel" can undoubtedly have a connotation totally inconsistent with proof beyond reasonable doubt, but they do not necessarily bear such a connotation. Again, there may be cases where express reference to a condition that the jury accepts the story of an accused without mention of the possibility that, although not believing the story, the jury might be in doubt whether it was true or false would tend to suggest it was for the accused to prove his innocence. It is sufficient for us to say that in the present case we are satisfied that when the summing-up is looked at as a whole there is no ground for complaint of misdirection as to the onus of proof. 5. Next it is said that the jury were insufficiently warned of the danger of believing the evidence of Miss LAI Mei-lin as to the identity of the persons she saw at the scene. No reliance was, in the event, placed on the fact that the identification parade record book was admitted in evidence. However, counsel did suggest that some similarity of build and features between the two Appellants and some suggested discrepancies in the evidence of various witnesses as to the identity of the persons attacking each of the victims made an express warning necessary in the present case. In our view the evidence of the witnesses was not irreconcilable and the jury were sufficiently alerted to the risk inherent in accepting the identification evidence although the learned judge did not give them a direct warning on the subject. 6. A further misdirection was alleged in an exchange between the judge and counsel at the end of the summing-up, counsel for the Crown being anxious to have an additional direction on the issue of common intent:
As we understand the arguments which have been advanced on behalf of both Appellants they amounted to this: (1) that although this was a correct direction as far as it went, the judge should have gone on to point out what evidence there was that the Appellants "were there consenting and encouraging and intending to encourage the violence which occurred"; (2) that by not clearly distinguishing between the encouragement of "a general attack" and "the violence which occurred" the judge allowed the issue to become confused. What counsel for the Crown appears to have feared was that the judge's charge to the jury might be taken as suggesting that the existence in the Appellants of a common intent to kill or to cause grievous bodily harm was by itself enough to make the Appellants guilty of murder. In other words he wished the judge to distinguish between murder and conspiracy to murder. The purpose of the intervention was summed up in the final sentence, "Mere agreement itself is not enough", but it is not clear that the learned judge appreciated this: his emphasis seems to us to have been on one of the things which counsel submits were not sufficiently emphasised, namely the distinction between encouraging a general attack and encouraging the violence which occurred. It is difficult to say what the jury made of this exchange. It would not have helped them but at the same time we do not see that it can have misled them. The judge had, in our view, sufficiently directed the jury as to the evidence which might lead the jury to believe that the Appellants were party to the attacks on the three men. 7. The only other matter we need mention is the second of the additional grounds of appeal in the Notices given by each Appellant:
We do not think it was necessary for the judge to approach the matter in that way. He adopted the better course of emphasising that it was for the prosecution to prove that their assessments of the Appellants' intentions were correct. We mention this ground of appeal expressly only because in the course of his argument Mr. Donnelly, on behalf of the second Appellant, appeared to be contending that the case of his client had not been sufficiently put before the jury. In particular he complained that the judge had not reminded the jury of the second Appellant's evidence (given in cross-examination) that on the day before the alleged offences he told SO Kuen he would not go with the others to see Tai Pau if the purpose of going there was to chop Tai Pau. Even if it be open to the second Appellant upon his Notices of the grounds of his appeal to take this point we are satisfied that the defence was left fairly to the jury. 8. The applications of both Appellants are dismissed. 28th November 1973. Representation: |