Chan Ming and Another v. The Queen
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CACC000762/1968 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 762 OF 1968 (On Appeal from Case No.3 of October, 1968 Sessions) -----------------
----------------- Coram: Hogan, C.J., Rigby, S.P.J. and Mills-Owens, J. Date of Judgment: 14 February 1969 ----------------- JUDGMENT ----------------- The two appellants, Chinese males aged 20 and 19 respectively, together with two other Chinese males, aged 15 years and 9 months and 22 years respectively, were indicted with the murder of one TAN Chuen, a Chinese male, on the 5th of July, 1968. 2.The two appellants, to whom it will be convenient to refer as the first and fourth accused, were convicted of murder; their two co-accused, to whom we will refer hereafter as the second and third accused, were convicted of manslaughter. The first and fourth accused now apply for leave to appeal against their conviction; in accordance with the usual practice we have treated their application for leave to appeal as the hearing of the appeal proper. 3.The facts may be briefly stated. At 9 a.m. on the 5th of July, in consequence of information received, police officers proceeded to a place at or near the junction of Gascoigne Road and Jordan Road close by the Diocesan Girls School. There, in the street, they found an empty 9-seater van or mini-bus. The windscreen of the bus had been broken in two places in the extreme right-hand and left-hand corners. From the bus there was a trail of blood to a place on the pavement some 8 yards away from the bus. There, a man, TAM Chuen by name, seriously wounded, was found lying in a pool of blood. The man himself was covered in blood. He was taken to the Queen Elizabeth Hospital where he died within the hour, about 10 a.m. There were no less than 22 wounds - mostly cutting wounds - on his body. Most of them were on his arms and legs. The fatal wound was a stab wound on the front of the left thigh just above the knee-cap. It was 7 inches long but never more than 1 inch below the skin surface, and it penetrated or severed the main femoral vein of the leg. 4.It is beyond dispute that the evidence against all four accused rested virtually entirely upon statements made by them after their arrest. The admissibility of those statements on the ground that they were neither freely nor voluntarily made - and, indeed, in some instances that the accused were taught by police officers what to say - was vigorously contested at the trial. However, the trial judge ruled them as admissible on the ground that they were freely and voluntarily made and he correctly directed the jury that the weight and value, if any, to be attached to the contents of those statements was a matter for the jury to determine. It is pertinent to observe that the admissibility of those statements is no longer challenged in any of the grounds of appeal filed on behalf of the appellants before this Court. 5.It is necessary to refer in some detail to those statements made by the accused. No doubt in consequence of information received, the first accused was arrested at 10.15 a.m. on the 9th of July in a public pavilion in King George ...(illegible) Park by Detective Sergeant 1917, TSANG Tai and a party of police officers. Having ascertained from the first accused his name and occupation, it would appear that the police sergeant, without any further preliminaries, at once arrested him and charged him with the murder of TAM Chuen on the 5th of July. It is said that after being duly cautioned, the first accused then and there made, and duly signed, the following statement:-
The first accused was taken back to Yaumati Police Station and there, at 11.05 a.m., he made a further statement to which it is unnecessary to refer. At 3.40 p.m. that same day he apparently made a statement to Det. Sgt. TSANG Tai and upon being reminded that he was still under caution, said as follows:-
Thereupon he was placed in a police car and directed the driver of the car to a lane in Kowloon in the immediate vicinity of which two meat-choppers, produced in evidence at the trial, were recovered. Later that same evening, at 7.15 p.m., the first accused was formally charged that he, together with other persons not then in custody, murdered TAM Chuen. After being duly cautioned, he made a statement which was recorded and duly signed by him. We would again emphasize that both the veracity and the voluntariness of that statement - and other statements to which I will later refer - were challenged at the trial, but having been admitted by the trial judge as freely and voluntarily made, the jury were then correctly directed that the weight and value to be attached to those statements was a matter for them. This statement was in the following terms:-
6.Those statements made by the first accused were, in fact, the only evidence against him directly implicating him with the murder of TAM Chuen. There was evidence that he had spent the night of the 4th of July in the room of a friend named Hung Chor Wah, and that the third and fourth accused had also spent the night there. The defence put up by the first accused was an alibi. He sought to account for his movements at the crucial period of time by saying that he had been elsewhere. It is sufficient to say that this alibi was of an extremely weak nature and was entirely unsubstantiated by any witnesses to support his presence elsewhere. Indeed, the fourth accused, with whose defence I shall later deal, not only said in evidence that both he, the first accused and the third accused had spent the night of the 4th July in the room of the man, Hung Chor Wah, but he further said that he was in the bus with the first accused up to the very time when the assault and killing of TAM Chuen took place. The only other evidence to which we think it is necessary, ?t this stage to refer is the fact that in the stationary mini-bus, immediately after the attack had taken place, was found a folded newspaper. It was ?ound under the wooden bench immediately behind the driver's seat. The deceased had been the driver of that bus. Dr. Nutten, the Government ??emist, gave evidence that the folds of that newspaper exactly fitted the shape and measurement of one of the two choppers found as a consequence of the directions given to the police by the first accused. 7.In order fully to understand the case as it was presented by the prosecution it is, we think, necessary to refer very briefly to the evidence of the second and third accused - and the defence put forward by them - although they have not appealed against their convictions. 8.The second accused was arrested in a stationary lorry in a street in Kowloon at 1.40 a.m. in the early morning hours of the 10th of July. Upon being arrested, he was at once charged with the murder of TAM Chuen and duly cautioned. He then made, and duly signed, the following statement:-
9.Later that same day he made two further statements, again under caution, to which it is unnecessary to refer. At 8.15 p.m. that same day he was then formally charged with the murder and, after being duly cautioned, he made, and signed, the following statement:-
10.The defence of the second accused was an alibi. Unsubstantiated by any evidence to support him, he simply said that he was at home, asleep, at the crucial time - 9 a.m. on the 5th of July - when the killing of TAM Chuen took place. As to the statements, he said that they were untrue and that he had been forced to make them because he had been pushed and punched by the police. 11.The third accused was arrested in bed in a ward at the Queen Elizabeth Hospital, Kowloon, at about 7 p.m. on the 10th of July. It would seem beyond dispute that he had been admitted into hospital at some earlier date as the result of a flight arising out of a game of mahjong in which he had been participating. He was arrested by Det. Cpl. SZE-TO Ming and at once charged that he, together with several other persons, "chopped and killed a Chinese male, TAM Chuen". According to the evidence, after being duly cautioned, he made the following statement, which was recorded by the Detective Corporal and signed by the accused:-
12.The following day, at 11.13 a.m., whilst still at Queen Elizabeth Hospital, the third accused was formally charged with the murder, together with others, of TAM Chuen. After being charged and cautioned he made the following statement, which was duly recorded and signed by the third accused. It is in these terms:-
13.In giving evidence in his own defence the third accused admitted that he had spent the night of the 4th July in the same room as Hung Chor Wah and that the first and fourth accused had also spent the night there. He had known the first accused for about 4 months but he said that their meeting that night at Hung Chor Wah's was purely fortuitous. In giving sworn testimony in his own defence - and it is pertinent to observe that such evidence was, of course, admissible against all his co-accused - he said that the following morning he, together with the first and the fourth accused, had boarded a mini-bus and later transferred to another mini-bus which was, in fact, driven by the deceased. He said that the first and fourth accused sat on the bench immediately behind the driver's seat. 14.Pausing here for a moment, it was underneath that bench that the newspaper was found, the folds of which exactly corresponded with the shape and measurement of one of the two choppers subsequently found by the police on the direction and at the instance of the first accused. Reverting to the evidence of the third accused he said that when a passenger alighted the first accused, for some reason not explained, told the driver of the bus, the deceased, also to alight from the bus. The deceased declined to do so and hit the first accused with his fist and a fight then ensued. While the fight was going on, the third accused and other passengers scrambled to get off the bus. He then saw the deceased being chased by the first accused and saw the first accused strike the deceased with something that he described as "a parcel 1 1/2' long". He also saw the second accused and an unknown person, both of whom had been in the first bus that had been boarded that morning, strike with poles the windscreen of the bus that the deceased had been driving and then turn and chase and hit the deceased as he was running away. He, the third accused, then left the scene. It will be apparent that that evidence, although it places the third accused at the scene of the crime and although it implicates the first and second accused, seeks to exculpate the third accused from any participation in any attack, or any knowledge of any preconceived attack, on the deceased. To that extent, in so far as knowledge that the deceased was going to be assaulted is concerned, his evidence materially differs from his two earlier statements made to the police. He could offer no satisfactory explanation as to why those statements differed from the evidence which he gave in Court. 14A.The fourth accused was arrested in a street in Kowloon at about 4.20 a.m. on the 17th of April by Det. Cpl. SZE-TO Ming who, seven days earlier, had arrested the third accused. Upon his arrest he was escorted to a police car waiting nearby and there he was charged with the murder of TAM Chuen. After being duly cautioned, according to the Detective Corporal's evidence the accused himself wrote - and thereafter signed - the following statement in the Det. Cpl.'s notebook:-
15.At 7.51 p.m. that same evening at Yaumati Police Station he was formally charged that he "together with CHAN Ming, IP Chi-wah, WU Wing-san and others not in custody" did murder TAM Chuen. After being duly cautioned he himself wrote, and thereafter signed, the following statement:-
16.On the following day it would appear that he was served with a copy of the statement earlier made by the third accused and, at the same time, duly cautioned. He then made the following statement, which was recorded and signed by him. It reads as follows:-
17.In giving evidence in his own defence the fourth accused admitted that he had spent the night of the 4th July with the first and third accused. The third accused he knew previously, but not the first accused. The following morning he had boarded a mini-bus with the first and third accused; his purpose being to see the Probation Officer at the South Kowloon Magistracy in Gascoigne Road. En route, it was necessary to change into another mini-bus to reach Gascoigne Road. Upon arrival of the mini-bus at Gascoigne Road a passenger wanted to alight and thereafter, for some reason unknown to the fourth accused, as he said, a fight took place. He got out of the bus and watched the fight for some time but took no part in it. As to the first statement allegedly made by him to the police, he said that it was untrue; that Det. Cpl. SZE-TO Ming and another police officer had told him what to say and, by actual physical violence, had compelled him to say it. The two subsequent statements allegedly made by him were untrue; he had been told what to say and said it because of fear of further ill-treatment. 18.So much for the evidence. It is, of course, elementary law - and was repeatedly emphasised by the learned judge to the jury in the course of his lengthy summing up - that the unsworn statements made to the police by each of the accused were evidence against that accused alone and were not, and could not be used as, evidence against any other person named in that statement or statements. The case for the prosecution was that there was a common design entered into and agreed upon between each of the accused, and at least one other person, to inflict, at the very least, grievous bodily harm to the deceased and that the injuries inflicted upon him, which resulted in his death, were the direct consequence of that common design. The law upon this matter was very clearly and, indeed, repeatedly explained to the jury by the learned judge. We have dealt at some length with the statements made by each one of the accused because it would seem abundantly clear, upon a consideration of each one of those statements, taken individually in so far as the maker of each statement was concerned, that if the contents of those statements were accepted by the jury as true, each one of the makers of those statements was a knowing and a willing party to the infliction of injury upon the accused. The nature and extent of the injuries which they expected and intended to be inflicted was apparent in the statements themselves. For example, the first accused, in his first statement, refers to chopping to death and the fact that the "knives were thrown away". He took the police to a place at which the knives were found. In his formal statement, when charged, he refers to chopping the deceased and then following him and chopping him at random. It is unnecessary to refer to the nature and number of injuries found upon the deceased. The prosecution case was that it was no mere coincidence that the first, third and fourth accused spent the night together and that they subsequently were in the same bus driven by the deceased immediately prior to his death. The prosecution contended that the plan was hatched the evening prior to the assault upon the deceased. 19.As to the fourth accused, again, upon his own statements, if believed, there was ample evidence of a preconceived common intention to beat up the deceased, and of his actual participation in the assault. 20.The same consideration applies to the second accused, the boy just under 16 years of age, although, as the learned judge pointed out to the jury, he was not together with the first, third and fourth accused the previous night; nor was he together with the three accused in the bus driven by the deceased (although he was with them in the earlier bus), and upon his own statement - and there was nothing to refute it - he only assaulted the deceased with a pole once he was outside the bus. It was, no doubt, upon these considerations and in the light of the careful and correct direction given to the jury upon the distinction, in such circumstances, between murder and manslaughter, that the jury convicted the second accused of the lesser offence of manslaughter. 21.Similarly, although the reasons for their verdict are a good deal more difficult to appreciate, the jury must have acquitted the third accused upon the charge of murder - and convicted him upon the lesser charge of manslaughter - upon the basis that although a party to a preconceived plan to assault the deceased, the third accused, both upon his own statements and the testimony given by him in Court, either satisfied them that he was not a party to an intention to kill or to cause grievous bodily harm or, at any rate, left them in reasonable doubt as to the extent to which he was prepared to go in the plan to assault the deceased. It may well be that the third accused was extremely fortunate in the verdict reached by the jury upon this issue. But, in the opinion of this Court, once the statements made by the first and fourth accused were ruled admissible in evidence as freely and voluntarily obtained, there was abundant evidence in their contents, if believed by the jury, to support the verdicts of murder in so far as they were concerned, and accordingly this Court is satisfied that there is no substance in these appeals. 22.However, having said that, as a matter of courtesy we propose to deal briefly and, we hope, adequately, with the submissions put forward by Mr. Wei on behalf of the first appellant. Mr. Wei first complains that the learned judge misdirected the jury. The gravamen of his complaint is as follows: the learned judge correctly directed the jury as to the law in cases where death occurs as the direct result of a common intention or design between two or more persons to kill or to cause serious bodily harm to a third person. The judge then went on to tell the jury that the most important question for them to decide in this case was whether or not there was a common design between these four accused. Thereafter, towards the end of his summing-up the learned judge, in so far as the first accused was concerned, drew attention to the statements made by him as indicating, if those statements were believed by the jury, a preconceived intention to "chop" the deceased, and his statement that after the deceased had alighted from the bus he chased him and "chopped" him "at random". The judge then said, in reference to those statements:-
Mr. Wei's complaint is this:- the case for the prosecution was put on the basis of a preconceived common intention to cause at least serious bodily harm to the deceased; the fatal wound was undoubtedly caused by a knife; there was no evidence that any of the accused was at any time in possession of a knife. Mr. Wei contended that by the use of the expression "quite irrespective of any question of common intention" the learned judge was indicating to the jury that upon his own statements, if the jury believed them, they could convict the first accused of murder on his own account regardless of whether or not he had been a party to any common intention to kill or cause grievous bodily harm to the deceased. He contended that that was a misdirection by reason of the fact that there was no evidence as to who had struck the fatal blow with the knife; that that blow might have been inflicted by some other person, and that the accused was entitled to be acquitted unless it was proved either that he had himself inflicted the fatal blow or that it was inflicted in furtherance of a preconceived plan, to which the first accused was a knowing and a willing party, either to kill the deceased or to cause him serious bodily harm. In support of his arguments Mr. Wei referred to the Privy Council decision in Mohan and Another v. The Queen(1) and the case of R. v. Anderson and Morris(2). Although both these cases are of considerable interest and importance in so far as they deal with the law relating to common intention in relation to murder and manslaughter, we think it quite unnecessary to refer, for the purposes of this case, to either of those cases other than to quote the words of Lord Pearson almost at the conclusion of the Mohan(1) case, that:
23.Looking at the statement of the first accused and, indeed, of all the accused, and considering their statements in the light of the verdicts returned by the jury, it must be clear beyond any possible doubt that the jury must necessarily have accepted those statements as evidence satisfying them beyond reasonable doubt that there was a common intention on the part of all the accused to cause some injury to the deceased. It is, of course, possible - at any rate in theory - for different persons embarking on a common design to cause injury to another person, to visualize in their own minds different degrees of injury to be inflicted. The law is lucidly and admirably set out in a passage in the summing-up of Thesiger, J. - approved by a Full Bench of the then Court of Criminal Appeal - in the case of R. v. Smith(3). Thesiger, J. addressed the jury in these terms:-
No doubt the last sentence of this passage should now be read in the light of R. v. Anderson and Morris[supra](2). Having regard to the statements of the first accused, the number and extent of the injuries found upon the body of the deceased, and the fact that the first accused directed the police to the place in the vicinity of which two choppers were found, once the contents of those statements were accepted by the jury - as they must necessarily have been for the jury to have returned a verdict of guilty of murder - there could surely have been no doubt whatsoever that the intention of the first accused was to maim or to inflict serious bodily harm on the deceased. 24.The next and, I think, the final argument advanced by Mr. Wei may be shortly disposed of. It will be recalled that in his first cautioned statement to Detective Corporal SZETO when arrested at the Queen Elizabeth Hospital, the fourth accused had said, in the course of that statement, that:-
It had undoubtedly been the suggestion of the prosecution, upon somewhat tenuous evidence, that it was the fourth accused who had struck the fatal blow in the van. Mr. Wei seized upon this isolated sentence in the first statement of the fourth accused and contended that it raised an issue of self-defence put forward by the fourth accused which, as Mr. Wei contended, had never been put before the jury by the learned judge for their consideration. He went on to argue that if it had been so put before the jury they might well have acquitted the fourth accused on the basis that he struck and killed the deceased either in self-defence (or by accident). If the jury had acquitted the fourth accused on the basis of such a direction as to self-defence then, of necessity, they would also have acquitted the first accused. It is, of course, undoubtedly true that it is the duty of a trial judge to put before the jury any defence which is available to the accused upon the evidence, even though that defence has not been raised or specifically relied upon by counsel for the accused in his final address to the jury. But it is sufficient to say that in no further statement made by the fourth accused to the police, nor at any time in the course of his evidence at the trial, did he suggest in any way that the deceased had had a knife in his hand and that in the course of struggling with the deceased, he, the fourth accused, stabbed the deceased either inadvertently or in self-defence with that knife. Nor, indeed, curious though it may be, was the fourth accused ever cross-examined by counsel for the prosecution upon that statement. This court is fully satisfied that there was no adequate or proper basis upon which the trial judge could, or should, have put the issue of self-defence, in so far as it concerned the fourth accused before the jury. This ground of appeal must accordingly fail. 25.In so far as the fourth accused is concerned, there was little that could be urged on his behalf that has not already been covered in dealing with the arguments advanced on behalf of the first accused. The first ground advanced by Mr. Arculli, who appeared on behalf of the first accused, rested on the suggestion that the judge did not deal adequately with the possibility that there might have been a conspiracy between two or more of the other accused to do grievous or fatal injury to the deceased, in which the fourth accused did not participate. This was not, we think, a reasonable possibility if the cautioned statements made to the police by the fourth accused were accepted by the jury. The statements of each accused, the admissibility and acceptance of which has already been dealt with, showed quite clearly that he was a party to the joint action which caused grievous and fatal injury to the deceased quite irrespective of who else might have entered that joint enterprise. This is sufficient to dispose of the first ground argued by Mr. Arculli. The second ground that the judge should have specifically warned the jury against regarding the finding of the choppers as evidence against the fourth accused cannot, we think, be sustained. The judge made it quite clear to the jury that the cautioned statements made by any one of the accused to the police were not evidence against those jointly accused with him and the significance of the finding of the choppers was entirely dependent on the statement made in regard to them by the first accused. There was no suggestion at any time that this finding of the choppers in itself told against the fourth accused and we do not think it was necessary for the judge to give an express direction that they should not be so regarded. Mr. Arculli did not seek to argue the third of his written grounds which refers to the use of the words "beyond reasonable doubt" in the judge's summing-up. He was content to leave it for consideration by the court on the strength of the authorities which had already been brought to our attention and from which we are satisfied that the judge's use of this expression was fully justified and not open to criticism. 26.The appeals of the first and fourth accused against their convictions for murder must accordingly be dismissed. Representation: R. Wei (D.B. Gunston & Co.) assigned for 1st Appellant. R. Arculli (Ford, Kwan & Co.) assigned for 3rd Appellant. M.F. Winter, C.C. for Respondent. (Judgment delivered by Hon. Rigby, S.P.J.) (1) (1967)2 A11. E.R.58. (2) (1966) 2 A11 E.R.644. (3) (1963) 3 A11 E.R.597 at 601 |