Lo Kwok-hung @ and Others v. The Queen
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CACC000898/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 898 OF 1973 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 19th February 1974. ----------------- JUDGMENT ----------------- 1. The appellant and another man, CHUNG Wing Choi, were tried in the Supreme Court for two offences: one, for the murder of IP Wing-chuen and one for affray. The appellant was found guilty on both counts. Chung Wing-choi was found guilty only on the count of affray, he was acquitted of the charge of murder. 2. The facts can be dealt with briefly. At about 5 a.m. on May 31st, 1973, there was a fight at the Lung Yue Teahouse in Jordan Road, Kowloon. IP Wing-chuen received four stab wounds of which one was fatal. Two of these wounds were inflicted to his back and two to his front. The medical evidence showed that at least two weapons were used. This was apparent from the dimensions of the wounds inflicted on him. Some eight or nine days later the appellant and Chung Wing-choi were arrested and each of them made a long statement to the police. 3. The evidence adduced on behalf of the prosecution against the appellant came from three separate sources (1) the account of an eye-witness, one LIU Wing, who was a foki employed at the teahouse, (2) the medical evidence and (3) the statement given by the appellant to the police. The appellant elected not to give evidence on his behalf in the court below. 4. The evidence of Mr. Liu was that he saw two men and a girl at one of the tables in the teahouse. He said he saw the deceased go up to that table and there was a conversation which he could not hear. The deceased toughed one of the men at the table on his shoulder and, Mr. Liu said, that man resented this. He then said the two men sitting at the table got up and there was a tussle between the deceased and the two men. The deceased grabbed a bottle and acted in a very aggressive way towards the two men. There was a fight during which the deceased made three attempts to pick up a chair to use as a weapon. He then said he saw the deceased being struck by a man with a knife. He said he was struck twice but his evidence is equivocal as to this and it could be that the real meaning of what he said was that three blows were inflicted. After this the deceased fell down and the two men ran off. Mr. Liu said that he saw only one knife used and that the deceased was stabbed while he was trying to pick up a chair. From this account, it is obvious that the deceased started the trouble. This witness was unable to identify the man who used the knife and did not know any of the parties concerned in the fight. 5. The medical evidence was that there were four stab wounds: two in the back and two in the front and the lower wound in the front which penetrated the heart was the fatal wound. 6. The statement of the appellant gives a very different story from that related by Mr. Liu. He said that the stabbing was done by his co-accused, Chung Wing Choi. His evidence was that he was with Chung Wing Choi and others earlier that evening at the Lung Yue Teahouse, and there was some altercation with other people who appeared to be members of a group different from the group to which he and Chung Wing Choi belonged. At that time he said he saw Chung Wing Choi take a knife from a cupboard and pocket it. From there he and Chung Wing Choi went to a billiards room which was above the teahouse. There they received a message stating that a friend of theirs, a member of their group, was having a dispute with members of a rival group in the Lung Yue Teahouse, so the two of them, with others, went down to the teahouse to see what was happening. He then described what he saw in the teahouse. He said that there was a dispute between their friend and certain members of the rival group. He himself left and went to the toilet. When he came back the dispute was still continuing. It was a dispute about a girl and he said that the members of the rival group, of whom one was the deceased, tried to settle the matter with his friend. However, his friend would not have this and a fight ensued between his friend and the deceased in which the former was the aggressor. The deceased used his fists and then Chung Wing Choi went up to the disputants and drew out a knife and stabbed the deceased. The statement then reads as follows:-
It is common ground that the jury must have based their conviction of the appellant for murder on the doctrine of common intent: namely that they took the view that he joined in the fight knowing that Chung Wing Choi or whoever it was who struck the fatal blow was armed with a knife and would in all probability use it, and indeed had used it. 7. The evidence, as I have said, showed that the appellant had knowledge that Chung Wing Choi was in possession of a knife. There is also the evidence that he picked up a beer bottle and intended to hit the deceased but that the deceased collapsed before he could carry out that intention. We think that on very careful direction a jury might hold that the fact that the appellant knew of the existence of the knife together with the conduct of the appellant in picking up the bottle and attempting to hit the deceased showed that the appellant and Chung Wing Choi had, at the time of the fatal blow, a common intention to kill or cause grievous bodily harm to the deceased. 8. Mr. Yu, who appeared for the appellant, criticized the summing-up of the Commissioner on two grounds. He said that the Commissioner insufficiently pointed out the very great contradictions between the evidence of the foki, Liu, and the contents of the statement of the appellant. And he said that the evidence did not go as far as various key passages in the summing-up seem to indicate, whichever version of what occurred was accepted by the jury: it would be wrong to infer that a person who joined a fight at its very end can be said to have a common intent with the person who inflicts the fatal wound: the Crown must prove that there was a common design before the stabbing, not after, which is all that the evidence here shows. 9. We think there is substance in part of this criticism. As we have said, it might well be on a very careful direction that where a man is stabbed and after that another man, as it were, adopts that conduct by using some sort of violence towards the deceased that this is sufficient on which to base a finding of common intent. But such a direction would have to point out the very real weakness of the case against the accused. 10. In the circumstances of this particular case, we do not think that the Commissioner in his summing-up put the case for the Crown in its true perspective. Therefore, we allowed the appeal against conviction. There was no appeal against the finding of guilty on the second charge of affray against the appellant, so the case must be remitted to the Commissioner to pass sentence on that conviction.
Representation: P. Yu (Gunston & Chow) for Appellant. Carolan, S.C.C., for Crown/Respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 898 OF 1973. -----------------
Coram: Date of Judgment: 6th March 1974. ----------------- NOTICE ----------------- 11. TAKE NOTICE that the date of the judgment in respect of the above-mentioned appeal should be 20th February 1974 instead of 19th February 1974.
Representation: P. Yu (Gunston & Chow) for Appellant. Carolan, S.C.C., for Crown/Respondent. |