Chan For-shui v. The Queen
|
CACC000880/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 880 OF 1974 -----------------
----------------- Coram: Leonard J. Date of Judgment: ----------------- JUDGMENT ----------------- 1. I allowed this appeal against convictions and sentence on charges of blackmail, theft and wounding and promised to give my reasons. 2. The appellant was charged that, on the 4th May 1974, he, with others not in custody, demanded $6,000 from LAU Kwai with menaces and that on the same day he and others stole $3,000 from LAU Kwai. The third charge - that of wounding - was alleged to have taken place two days later on the 6th May 1974. 3. There was no evidence whatsoever of any demand having been made of LAU Kwai on the 4th May 1974 or of any payment having been made on that day. Any demand that may have been made was not, according to the evidence, made on the 4th but on the 5th and was not for the sum of $6,000 but for the sum of $20,000. As to the alleged theft of $3,000 while there was on the record evidence of a payment of $3,000 it was made on the 5th or 6th (the evidence is not clear) and but certainly not on the 4th. Furthermore there was clear evidence that the injuries suffered by the victim were inflicted by a person called Tsang not in custody. The only evidence as to the participation of the appellant in the infliction of these injuries or his sharing in a common intent that they be inflicted was that they were inflicted by Tsang and that the appellant had been in a group led by Tsang on the 4th when the group had visited the victim, on the 5th when demands had been made of him and that the defendant had been unarmed on the 6th. There were, the victim said :
The appellant was unrepresented in the court below and the victim was unfortunately not properly cross-examined. The appellant did suggest in cross-examining the victim that he the appellant had tried to stop the attack and while the victim disagreed with this he agreed that the appellant had not inflicted any blows. Unfortunately the victim was not asked, how, while he was running away he had seen the appellant, last of a group of four three of whom were armed, with his fists clenched. Having heard Mr. Sanguinetti on these facts I asked Crown counsel if he supported the conviction. He found himself unable to do so as far as the charges for demanding and theft were concerned but suggested that there was sufficient evidence on the wounding charge. I therefore indicated to Mr. Sanguinetti that there was scarcely any necessity for him to open any grounds of appeal other than that there was no evidence sufficient to support the conviction. However with that dedication to the interests of abstract justice (which are not necessarily divorced from the less exacting interests of practical advocacy) for which he is so well known, Mr. Sanguinetti considered it desirable to open all the grounds he had adumbrated in his grounds of appeal. I consider he was correct in taking this course in this particular case as will appear hereafter and in the deference to his lengthy and careful argument I will deal with certain of them in some detail. Mr. Sanguinetti was kind enough to suggest that any remarks which I might make on these grounds of appeal might be of guidance to the magistrates in future. This I doubt, for I feel sure that all magistrates will be aware of any principles I seek to enunciate here. That a very few of the magistrates may on very few occasions fail to observe them must be attributed to the appallingly severe pressures imposed by the sheer number of cases with which they have to deal. 4. The additional grounds of appeal read :
There is no substance in "(a)" and even less in "(e)" for there is a clear entry on the record which reads "choices put to defendant : Defendant elects to give evidence" and there is no indication whatsoever that the appellant wished to address the court having given evidence or that he wished to call any witnesses. "(g)" arises from a typographical error which occasioned no injustice. I must, however, deal with "(b)", "(c)", "(d)" and "(f)" for anyone of them even taken by itself might have been fatal to a conviction. To deal with them I must go into the record in some detail. 5. The first witness for the prosecution, a doctor proved that the victim had suffered an abrasion on the chest, a small haematoma on the forehead, a 1/2 cm. wound on the cheek and a severe cut wound on the left thumb. He had these injuries on 6th May 1974. 6. The second witness was the victim, LAU Kwai, who carried on business at Kowloon Bay on Crown land. On 4th May 1974 four people, one of whom was the appellant, who were led by the man Tsang came to the victim's place of business. Tsang claimed that he was entitled to the occupation of the Crown land in question and suggested a discussion. Nothing further happened on that day. 7. The "following day" (which would be the 5th) the four came again and Tsang demanded $20,000 saying that unless it was paid he would throw everything out of the victim's factory. The record then reads :
8. The cross-examination was brief. The first suggestion was that the appellant had not attacked the victim but tried to stop the attack. This the victim denied. The next passage as recorded reads :
9. Defendant then said 5 people included WU Yeung as a mediator on two occasions.
This passage, brief as it is, raises important considerations. The first question as framed may refer to occasions other than that on which the wounding took place but, as answered, was presumably taken by the witness as referring to the time of the physical attack on him. If so the answer suggests the question "If you could not see (how many were attacking you) how could you see that the defendant was following behind with his fists clenched?" - a question that was never asked. Again the answer "WU Yeung was present on 6th May 1974 and he tried to stop the fight. Not present on any other occasion" does not make it clear whether he was present on two different occasions on 6th May 1974 once when a discussion took place and later when the attack took place. We know from the medical evidence that the attack took place on the 6th of May but, as will be seen from the passage from his evidence-in-chief I have quoted and the bracketed dates I have inserted, the evidence of the victim is confusing because of his reiterated use of the phrase "the following day". To make sense of it one must, I think, assume that both a discussion and the physical attack took place on the 6th. Again if WU Yeung had tried to stop the fight there was at least a possibility that the appellant had assisted him for the case the appellant was making was that he had tried to stop the fight. The Crown apparently did not intend to call WU Yeung as he was not immediately available and (if the record is accurate) no request was made to the magistrate for an adjournment by either the Crown or the appellant. His note reads :
This order was plainly wrong. Section 20 of the Magistrates Ordinance empowers a magistrate
In this case the appellant was on bail which the magistrate had purported to extend. It was a condition of that bail that the appellant should report to Tse Wan Shan Police Station daily between 8.00 a.m. and 12 noon. I gather that he continued to do so every day for a period of 81 days for the following note appears on the record :
I don't know how this restoration took place, whether representations were made in Chambers or in open court which led to it or whether the magistrate acted of his own motion. It took place I am assumed in the absence of the appellant. On the 10th September 1974 the trial resumed as if nothing had happened; WU Yeung was not called as a witness and no further reference was made to him throughout the prosecution case. Two references were made to him in the cross-examination of the appellant when the appellant admitted that he had met him and the victim at Kowloon Bay and when he said that he did not know in what WU Yeung was mediating. In this connection it is noteworthy that it was never suggested that WU Yeung was a friend of the appellant. He was a friend of the victim who mentioned him for the first time in his examination-in-chief. I find it disturbing that WU Yeung was not called as a witness without explanation as to his absence, more disturbing that there is no record as to the result of the investigations into him ordered by the magistrate and more disturbing still that there not the slightest reference to him in the magistrate's statement of findings. What causes me the deepest concern, however, is that a member of our community should be made to feel obliged to call daily at a police station for an indefinite period which ultimately extended to a period of almost three months. I would emphasize the words "for an indefinite period" because I do not wish for a moment to detract from a magistrate's power to impose conditions (in particular a condition requiring the person to report to a police station) when granting bail. Bail, however, although it may be renewed or extended from time to time, is never granted or extended for an indefinite period. It is of its nature that it cannot be, anymore than an accused person can be remanded in custody for an indefinite period. Remanding him in custody and obliging him to report to a police station are equally an interference with his liberty - the difference is one of degree only. I trust that such an unjustifiable interference with liberty will not again occur. 10. It is, of course, not the intereference with the appellant's liberty which causes me to regard his ultimate conviction as unsatisfactory. The conviction is unsatisfactory because the adjournment sine die rendered the proceedings irregular. It is also unsatisfactory because I am completely in the dark as to the what investigations ordered by the magistrate were or were to be carried out so apparently was the appellant. He and I are equally ignorant of the result, how the case came to be restored and most importantly ignorant as to the reason why WU Yeung, after an adjournment of 81 days, was not called as a witness. I would regard these factors alone even if there were otherwise evidence warranting the conviction for regarding it as unsafe and unsatisfactory. 11. Unfortunately the matter does not end there. I consider that in addition there is merit in the complaints that the magistrate failed to consider each of the three offences separately and that the evidence was not sufficient to infer a common intent or design in respect of each. As it is common case that there is no evidence of any illegal activity on the 4th May 1974 the second and third charges (those of blackmail and theft) which relate to that date must go and I need consider the evidence as to what occurred on the 4th and 5th only to enquire if it shows, when read together with what occurred on the 6th, the existence of a common intention to wound. Read at its worst, I do not see how it can show anything further than a common intention to terrorize. On the 4th Tsang 2 others and the appellant visited the victim and Tsang made a claim to the Crown land occupied by the victim. On the 5th the appellant came again with the three others when Tsang threatened not to let the appellant use the premises and demanded $20,000. At that stage there was no evidence of anything more than a threat to throw everything out of the factory made by Tsang who may or may not have been engaged in a common enterprise with the appellant. The only facts tending to show a common intent at that stage are that the appellant and the other two were with Tsang and that the victim referred to "Tsang and his gang". The receipt by one of the other two of the sum of $3,000 does not prove that the appellant shared in the common intent at that stage. There followed the threat - and the victim does not say who made it - that he would be beaten or killed if he did not pay "$2,500 on top of the sum of $3,500" he had already paid. The victim speaks of no overt act having been committed by the appellant or anything having been said by him up to the time the physical attack occurred. True the victim identifies the appellant as "one of the men who was involved" and says he was not armed with a knife while Tsang was but whether he meant that Tsang was armed with a knife at some time earlier than the time of the wounding does not appear from the record. As I read it he meant that Tsang had a knife at the time of the wounding. For these reasons the evidence as to what occurred before the time of the wounding does not help us. The rest of the evidence of the victim relating to the issue of common intention I have set out verbatim. What the appellant "was involved" in the victim does not say although he refers twice to "Tsang and his gang". More important the learned magistrate in his statement of findings does not say in precisely what actions he found that the appellant was "involved". He refers to an identification parade in which the appellant was identified as having been "the man involved" and to the claim of the appellant in evidence of his "involvement" having been "simply innocent". He goes on to say that he was "quite satisfied that the appellant played a full part in the offences" and that he "did not accept his statement that he was unaware of the sinister nature of the transactions involving the victim" and that the "appellant was a participator in the offences". With respect to the learned magistrate this is not nearly enough to convict the appellant of wounding. It was common case that the appellant personally dealt no blow; to convict him of wounding then it was necessary for the magistrate to be satisfied that he was acting in concert with Tsang when Tsang inflicted the wounds. It is trite law, (however difficult it may be to apply in practice when death results and the question of manslaughter falls for consideration as such cases as Anderson & Morris(1), R. v. Betty(2) and our own case of TSANG Wai-keung v. The Queen(3) demonstrate) that before a person can be criminally responsible for the act of another both must have embarked on a joint enterprise and the act in question must have been done in pursuance of the joint enterprise. A person engaged in a joint enterprise cannot be criminally liable for the act of his co-adventurer if that act goes beyond what has been agreed. In this case the magistrate concluded that the appellant had "participated" presumably implying "in a joint enterprise" but failed to define that joint enterprise and in particular failed to hold that the appellant had embarked on a joint enterprise to wound or even on a joint enterprise to terrorize knowing that Tsang had a knife. This is perhaps not unnatural since there was evidence that the appellant was unarmed and absolutely no evidence to indicate that the appellant at any stage knew that Tsang had a knife except for the evidence of the victim that it was "a long knife" and that the other two had bars. 12. The learned magistrate's error in this respect perhaps springs from a failure to consider each charge individually for it is clear that there was such a failure in that he refers to the appellant as having played "a full part in the offences", to "the sinister nature of the transactions", and to the appellant as a "participator" without saying in what he "participated". The headnote to R. v. Short(4) puts the matter pithily "to convict a co-defendant of more than one crime on the ground of common design, there must be satisfactory evidence that the concert extended to each such crime". It does not appear from the statement of findings that the madistrate considered how far the concert extended. Therefore on (b) and (c) of the grounds advanced I am also driven to conclude that the conviction was unsafe and unsatisfactory. 13. Sub-para. (d) of the grounds also has some substance. The appellant was cross-examined on what is commonly called the antecedents statement. Such a statement should not be used for any purpose whatsoever at the trial up to the point of verdict. (See CHENG Chung-yat v. The Queen(5)). Its sole purpose is to enable the prosecution to assist the court if there is a conviction. However the only question asked was whether or not he had told the police officers he was unemployed he having said in evidence that he was a broker. I don't think this can possibly have done any real harm. 14. The other matters however I found quite compelling and allowed the appeal.
Representation: Mr. Sanguinetti (D.L.A.) for appellant. Mr. Harte, C.C. for the Crown/respondent. (1) (1966) 2 All E.R. ...(illegible). (2) (1963) 48 Cr. App. R. 6. (3) (1973) H.K.L.R. 432. (4) (1932) 23 Crim. App. R. 170. (5) (1970) H.K.L.R. 209. |