Wong Wai Yin and Others v. The Queen

CACC000873/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 873 OF 1974

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Coram: Huggins, McMullin & Pickering.

Date of Judgment: 19th December 1974.

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JUDGMENT

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Huggins, J.:

1. We are told that the hearing before the learned trial judge was a re-hearing, a fact which is not entirely without significance. The Appellants were before the courts on a charge of murder. The first two Appellants pleaded Not guilty to murder but Guilty to manslaughter and those pleas were accepted.

2. The present appeal against conviction is by the third Appellant, who was found Guilty by the jury. It is contended by Mr. Yu, on his behalf, that the verdict was unsafe and unsatisfactory and he emphasises that it is apparent from the summing-up of the learned judge that he was in some doubt about the guilt of the Appellant. There are two points at which counsel aims his attack. First, he contends that there is no satisfactory evidence that the person I shall call "the Deceased", who was taken to the Yuen Long Jockey Club Clinic and found to have three stab wounds in the back and who was then taken to the Queen Elizabeth Hospital and subsequently identified at the mortuary, was the same person as the person who was involved in certain discussions at a tea house in Yuen Long that evening. The Deceased and the person in the tea house were both known by the name KWOK Chun-kwun. The circumstances of the tea house discussion were that some members of the 14K Triad Society and some members of the Shing Wo Triad Society had had a disagreement. There was a meeting arranged at a tea house in Yuen Long. The evidence of Mr. LAM Chun-wing was that he met a man called KWOK Chun-kwun in Fanling at 6 p.m. of 13th November, that they then went to Yuen Long for the purpose of a discussion about compensation with the people of the 14K: a discussion took place and the Deceased offered $500 compensation and indicated that he would pay no more: thereafter there was a commotion: someone outside was heard to shout "hit". (That is the evidence of Mr. Lam: the evidence of the Appellant's statement was that somebody said "chop him"). Mr. Lam says that he ran out of the tea house and that he was then attacked: he saw other members of the gang which attacked him going into the tea house. The other evidence of the incident is contained in a statement given to the police by the Appellant himself. He said that he was a member of the 14K, that he went to this tea shop at about 8 p.m. and that there he talked terms with a group of the Shing Wo. It was a man called Police Constable Kin who had asked him to go, and he said that Kin and the Deceased had a discussion. After the failure of these discussions and the cry "chop him", he said, persons took out choppers and he himself got a chopper and chased the Shing Wo boys to hit. "Not long afterwards," he goes on, "someone called policemen. I was frightened and fled. I did not know if anyone was chopped".

3. Now the case for the Crown was, therefore, that a man called KWOK Chun-kwun was the subject of an attack in this tea house and that shortly thereafter at a clinic not far distant in the same town a man called KWOK Chun-kwun was brought in with wounds from which he died, and the first question argued before us was whether there was a compelling inference that the person who was examined in the clinic and who subsequently died of his wounds was the same man as the KWOK Chun-kwun who was in the party of Shing Wo in the tea house. As to this point we are of opinion that it was not only a reasonable inference but in all the circumstances it was a compelling inference that it was the same person.

4. The second point is not unrelated and it is to the effect that really there is no sufficient evidence here, upon which a verdict could be safe, to show that the Appellant was responsible in any way for the fatal stabbing. It can be put like this. There was evidence that the Deceased was attacked in the tea house but there was no evidence that that attack was successful. The learned judge emphasised to the jury that there was no evidence as to when and where the Deceased received his injuries. It is possible that this attack, so far as the Deceased was concerned, was unsuccessful, that the fight then broke up and that at some later time (be it near or far from that tea house) somebody (it may be still one of the same gang) sprang on him from behind and stabbed him. It was for the prosecution to establish that there was a common intent between the Appellant and whomever it was who caused these stab wounds. It is not suggested for a moment that the Appellant himself caused these wounds. He had a chopper. There was no evidence of any chop wounds on the Deceased: they were stab wounds with a triangular instrument and there is no evidence that this Appellant had a triangular instrument.

5. It is sufficient to say that we are left here with some doubt. It may not be a very grave doubt but we do think that the verdict is unsafe and that the conviction must be quashed. The sentence, of course, must be set aside.

6. The other two Appellants appeal against their sentences of ten years' imprisonment. That was the same sentence as was imposed upon the third Appellant. The position as we see it is this, that the verdict which was returned by the jury on the third Appellant was almost certainly a compromise verdict. It is difficult to see how, if he was guilty at all, he was not guilty of murder. In those circumstances, faced with a verdict of manslaughter, the judge was entitled to take the view that this was a manslaughter at the top of the scale, very nearly murder, and a substantial sentence was justified. However, as to the first two Appellants it is not by any means clear that the offence was approaching murder and in our view a sentence of ten years was excessive. We, therefore, allow their appeals and, having regard to their respective ages, we substitute sentences in respect of the first Appellant, who is 23 years of age, of six years' imprisonment and of the second Appellant, who is 18 years of age, of five years' imprisonment.

19th December 1974.

Representation: