Yip Po-lung v. The Queen

CACC000827/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.827 OF 1978

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CORAM: Addison, J.

Date of Judgment: 22nd September, 1978.

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JUDGMENT

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1. The appellant lives with his brother, Yip Po-keung, at Room 321, Block 13, 3rd floor, Lower Ngau Tau Kok Estate, Kowloon and is a prison officer. He has a girl-friend named Wu Lai-wan. She was formerly the protege of Lau Hang and when she left him he was much annoyed. He was not prepared to release Wu Lai-wan unless the appellant paid him a separation fee of $5,000. He was demanding this sum notwithstanding he was already married to another woman by whom he has a child. Yip Po-lung saw no reason to pay this money and their disagreement led to an altercation on the 17th May, 1978 at 1:30 a.m. in the vicinity of the appellant's flat. During that dispute Lau Hang punched the appellant several times before he was ultimately knocked to the ground.

2. The appellant gave evidence that after this fight Lau Hang threatened him to the effect that if he did not kill him the following night he would burn him to death. The appellant still refused to pay any separation fee but suggested to Lau Hang that they should meet in a restaurant at 2 p.m. later that same day. Apparently he wanted to leave the matter open for further discussion.

3. After this fight, the appellant and his brother took Wu Lai-wan back to their flat.

4. The matter would have rested there but for the subsequent conduct of Lau Hang. At about 3 a.m. that same morning Lau Hang accompanied by Chow Kin-man went to the appellant's flat where, according to Lau Hang, the appellant invited him inside and thereupon assaulted him with a knife. It was Lau Hang's evidence that his associate remained outside in the corridor and that immediately upon his being struck by the appellant, Chow Kin-man tried to pull him from the flat whereupon he "stumbled inside". A more improbable explanation for Lau Hang's presence inside the premises is difficult to imagine. Both he and Chow Kin-man denied they went to those premises armed with knives. The learned Magistrate had no hesitation in disbelieving their evidence on this point. In fact during the course of the trial the learned Magistrate went so far as to remark that Chow Kin-man was an utterly unreliable witness whose evidence he proposed to ignore completely.

5. It was agreed that both Lau Hang and Chow Kin-man suffered injuries from their visit to the premises. Those inflicted upon Lau Hang consisted of two deep lacerations of his scalp over the forehead with a linear fracture; six lacerations of his hands and right forehead and three superficial lacerations on his back. Chow Kin-man's injuries were described as "multi chop wounds on his left forehead and hand". According to Chow Kin-man, whose evidence the Magistrate rejected, he said he saw both the appellant and his brother strike Lau Hang.

6. The appellant and his brother were prosecuted on two charges of wounding contrary to Section 19 of the Offences Against the Person Ordinance, Cap. 212. Lau Hang was the victim named in the first charge; Chow Kin-man was the victim in the second charge. The learned Magistrate acquitted the appellant's brother on both charges but he convicted the appellant of maliciously wounding Lau Hang only. The appellant appeals against his conviction.

7. His defence at the trial was one of self-defence. It was his case that Lau Hang and Chow Kin-man forced their way into his flat on the 17th May at about 3 a.m. after both he and his brother made attempts to prevent them from entering. He said Lau Hang was carrying two knives and he succeeded in wresting one of those knives from Lau Hang and used it to defend himself against Lau Hang's assault. It was an integral part of his case that he stopped when he saw Lau Hang's body covered with blood and when Lau Hang dropped his hand thereby indicating the fight was at an end. After this he took Lau Hang's knife from him and placed it together with that which he had used on the table in the living room and then fetched a water pipe holding it at Lau Hang until the police arrived.

8. Lau Hang in his evidence accused the appellant of having prodded him with that water pipe but Miss Wu Lai-wan gave evidence corroborating the appellant's testimony that he did not use it to strike the victim.

9. The appellant's brother gave evidence as to the way in which entry was made into the premises. It seems that he left the grille door unlocked and on hearing the doorbell at 3 a.m. he removed the chain from the door and carefully opened it. The door was eventually pushed open notwithstanding his efforts and those of the appellant to stop anyone from entering. In his evidence the brother said that Lau Hang went berserk and attacked both him and the appellant with a knife.

10. D.C.12234 gave evidence for the Crown that there were signs of fighting inside the premises and that he found two knives in the living room and one in the corridor outside. He also seized a water pipe. There were signs of blood at the entrance as well as two feet away in the direction of the living room.

11. The learned Magistrate commented that the injuries received by the appellant, namely, two small cuts on his right arm, were slight in comparison with those sustained by Lau Hang. Mr. Plowman who appears for the Crown in this appeal has also mentioned this matter and has indicated that the victim spent two days in hospital.

12. In paragraph 7, 8 and 9 of his statement of findings the learned Magistrate said this:

13. Self-defence is an extrajudicial remedy and a private substitute for the public protection instituted by society. It is an extraordinary and exceptional remedy which may be resorted to by the individual when an attack takes place and not after that attack has ceased.

14. In Palmer v. Reginam* [1971] 1 All E.R. 1077, Lord Morris of Borth-Y-Gest in delivering the judgment of the Privy Council said, at page 1084:

"An issue of self-defence may of course arise in a range and variety of cases and circumstances where no death has resulted. The tests as to its rejection or its validity will be just the same as in a case where death has resulted. In its simplest form the question that arises is the question: was the defendant acting in necessary self-defence? If the prosecution satisfy the jury that he was not then all other possible issues remain."

Furthermore, at page 1088 of the report he said this:

"In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider in agreement with the approach in De Freitas v. R. that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking then that matter would be left to the jury."

15. The grounds of appeal allege that the learned Magistrate erred in not holding that the appellant's conduct did not amount to self-defence and that the verdict was unsafe and unsatisfactory.

16. In the Statement of Findings the learned Magistrate referred to the earlier altercation between the appellant and Lau Hang. There was no suggestion that the appellant acted incommensurably on that occasion.

17. In assessing culpability the learned Magistrate seems to have been influenced by the respective injuries sustained by the parties, rather than allow the defence of self-defence its full blown limit of what was reasonable in all the circumstances.

18. The Attorney General for Northern Ireland's Reference*[1976] 3 W.L.R. 235, a case, admittedly not one of self-defence, Lord Deplock in the course of his Judgment said these words which I feel are relevant to this appeal:

"The jury in approaching the final part of the question should remind themselves that the postulated balancing or risk against risk, harm against harm, by the reasonable man is not undertaken in the calm analytical atmosphere of the courtroom after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused; but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed."

19. It was held in Wheeler's case*[1968] 52 Criminal Appeal Reports, at page 28:

"When on a charge involving killing or non-fatal violence the defendant puts forward a justification such as self-defence, provocation or resistance to a violent felony, it is essential that the jury should be directed that none of those issues of justification are properly to be regarded as defences in which any onus rests on the defendant, but that they are matters which the prosecution must disprove as an essential part of their case before a verdict of Guilty is proper."

20. The issue in this case was not whether the appellant was in any way responsible for allowing the door to the premises to be opened. That may have been relevant if it was to go to show that he was spoiling for a fight and was expecting or hoping the victim would call at his premises in the early hours of that morning. The issue was whether the appellant was reasonably acting in self-defence and it was for the prosecution to prove beyond reasonable doubt that he was not acting in self-defence.

21. There is one further point. The learned Magistrate seems to have assumed the appellant had received training in self-defence. There had in fact been no such evidence led before him and even if there were there is nothing on the record to show that such training without recourse to the steps the appellant actually stood would have stood him in good stead against these two hoodlums who forced their way into his premises armed with knives.

22. Fine balancing acts are not required in cases of this kind where a jury is required to assess the matter broadly using common sense and having regard to all the surrounding circumstances including any reasonable apprehension in the mind of the defendant arising from threats earlier made against him.

23. In all the circumstances of this case I do not find myself in agreement with the learned Magistrate that the prosecution had convincingly proved the appellant exceeded his reasonable rights of self-defence. In my judgment this appeal must be allowed. The Conc conviction is quashed and the appellant is to be released.

Representation:

* [1971] 1 All E.R. 1077

* [1976] 3 W.L.R. 235

* [1968] 52 Criminal Appeal Reports.