George William Puttock and Another v. The Queen
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CACC000800/1976
Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 10th February, 1977. ----------------- JUDGMENT ----------------- 1. The appellants were found guilty of the murder of a Chinese man named Ng Fai. They appeal against that conviction. At the time of the offence the appellants were soldiers in the British Forces stationed in Hong Kong. 2. The death of Mr. Ng Fai occurred in the early hours of February 18th, 1976. He died from brain injuries at the Kam Tin Main Road outside the Sek Kong Army Camp where the two appellants were stationed. 3. The case for the Crown was that the two appellants, who were not in uniform, spent the evening and night of February 17th drinking together in various bars in Kam Tin. They were for some time accompanied by two girls. When the bars at Kam Tin closed, namely at about 2 a.m. on the morning of the 18th February, the party moved to Yuen Long where at least the first appellant had some more to drink. 4. At about 3.30 a.m. they returned to Kam Tin where they spent some time in a park or playground. The girls left the appellants who started back for the Army Camp. 5. There was evidence that two European men rather the worse for drink were seen in the Kam Tin Main Road at about 5.15 a.m. One of the Europeans threw a stone at a public light bus, and there was an altercation between the driver of the bus and the two Europeans. 6. A Mr. Chan Yick-lee gave evidence of this incident but in very different terms from that given by the driver of the public light bus. He, Mr. Chan, said that he saw two European men chasing three Chinese. All were carrying wooden poles. The Europeans chased the three Chinese into the public light bus which then drove away. 7. Mr. Chan also stated that the two Europeans then spoke to him and that they were in an aggressive mood. They were, he said in evidence, still each holding a wooden pole. He then described the attack on a Chinese man in some detail. He said that the two Europeans chased the man who tried to run away. He fell down and the Europeans continued to strike him. Mr. Chan went to his assistance. He threw stones and a wooden pole at the Europeans who chased him away. He retreated to a place of safety. When he saw that the assailants had left he went up to the victim of the attack and found that he was dead. He saw that the Europeans were still on the scene but further down the road. Mr. Chan spoke to them and it is his evidence that those two Europeans were the two appellants. 8. The next thing that occurred was the arrival of a second public light bus. One of the Europeans threw a wooden pole through the rear window of the bus. The driver of the bus identified the first appellant as being one of the two Europeans who attacked his bus. The first appellant was arrested at the entrance to the camp soon after this. He was carrying a wooden pole when he was arrested. The second appellant was arrested later in his quarters. 9. That, in very broad outlines, was the case for the Crown. 10. The defence of the first appellant was that he was very drunk at the time and that he and the second appellant were set upon by some Chinese men, and that they were forced to defend themselves. The deceased was one of his attackers and must have died as a result of the fight which the deceased and his friends had begun. However, he was himself very much under the influence of liquor and could not remember many details of what actually happened. The first appellant gave evidence on his own behalf. 11. The second appellant did not go into the witness box. His defence was that he was not at the scene of the fight. It was not denied that he had been drinking with the first appellant over a long period of time. He was not with the first appellant when the latter was arrested and the inference that was sought to be drawn was that he, the second appellant, had left the first appellant earlier and gone back to the camp alone. 12. Various grounds of appeal were argued but it is only necessary to deal with three. The first two concern both of the appellants. The third ground concerns the second appellant alone. 13. It will be convenient to deal with the third ground of appeal first. This was that there was not sufficient evidence that the second appellant was with the first appellant at the time of the incident which resulted in the death of the deceased. He was not with the first appellant when the latter was arrested still carrying a wooden pole, immediately after the incident at 5.35 a.m The second appellant was arrested in his quarters at about 6.20 a.m. There were several witnesses who described the two Europeans whom they saw participating in the attacks on the two public light buses. No one positvely identified the second appellant as one of those Europeans. 14. The Crown called evidence to show that certain fibres found on the deceased corresponded with fibres of which the clothes admittedly worn by the second appellant at the period in question were composed. This evidence was given by a Government Chemist and counsel for the second appellant criticized this on the ground (among others) that a wrong test had been applied. We think that there are grounds here for criticism. But in the circumstances of this case we do not think that this assists the second appellant. 15. When the first appellant went into the witness box he gave very definite evidence that the second appellant was his companion at the incident. He gave a graphic description of how the second appellant had assisted him not only in holding him up, he being very drunk, but also to the effect that he was involved with him in the fight. 16. Mr. Chan also identified the second appellant as one of the persons engaged in the incident. 17. The other two grounds of appeal with which we intend to deal concern both the appellants. 18. Counsel complained of a sentence in the summing-up which reads as follows:-
19. It was suggested by counsel that this passage was open to the interpretation that the defence of drunkenness, so as to reduce the crime from murder to manslaughter, is only open to a defendant if he can prove that he was in such a state of intoxication that he had become an automaton. In the present case there was no such evidence. 20. The answer to this we think is that it is wrong to take the particular sentence which is quoted above out of its context. It forms part of a passage in the summing-up in which the judge is dealing with the various possibilities which were open to the jury when considering the question of intoxication. Read in its context it is perfectly unobjectionable. There is no suggestion that the burden of proof had shifted from the prosecution. We think, therefore, that there is no substance in this ground of appeal. 21. The final ground with which we propose to deal is that the verdict is unsafe and unsatisfactory. 22. Counsel for the appellants took us carefully through the whole evidence. He pointed out the inconsistencies in the evidence of the witnesses called by the prosecution. In particular he criticized the evidence of Mr. Chan, the chief witness for the prosecution very severely. He suggested that this witness was extremely biassed, had given evidence which was in part totally fabricated and was always exaggerated. It is unnecessary here to go into detail. It is enough to say that Mr. Chan's description of the first incident concerning a public light bus was very different from, though not at complete variance to, that given by the driver of that bus. There was also the question of how far away from the incidents which he described was Mr. Chan standing. It was dark at the time and it would appear from his evidence that Mr. Chan exaggerated the details of what he saw. 23. Counsel agreed that the judge had pointed out to the jury that Mr. Chan was a biassed witness and that they must take that into consideration when assessing the weight of his evidence. The judge also asked them to consider carefully whether Mr. Chan could have seen as much of the incident when the deceased was attacked as he said he could. 24. Counsel argued that the judge did not go nearly far enough. And he suggested that what he did say on this point amounted to a misdirection. 25. With respect, we cannot agree. There was evidence other than that given by Mr. Chan to support the case for the prosecution. In particular, evidence of the aggression of the appellants, and to negative the defence that a group of persons had attacked the two appellants who were acting in self-defence. In addition, the judge properly warned the jury as to the possibility of prejudice and exaggeration in the evidence of Mr. Chan as we have already stated. We think that this ground of appeal must also fail. 26. These applications must be dismissed.
Representation: Henry Litton, Q.C. & Francis Eddis (D.A.L.S.) for 1st appellant. Henry Litton, Q.C. & E.C. Mumford (D.A.L.S.) for 2nd appellant. Little for the Crown/respondent. |