Ho Cheung Alias Ho Shu Cheung Alias Ho Wah v. The Queen
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CACC000984/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 984 OF 1971 -----------------
Coram: Full Court (Hon. Rigby, C.J. , Huggins and McMullin JJ.) Date of Judgment: 29th February, 1972. ----------------- JUDGMENT ----------------- Rigby, C.J.: 1. On the 15th December, 1971, the appellant was found guilty by the verdict of the jury upon one count of murder and two counts of robbery. He now applies for leave to appeal against his conviction and sentence. At the outset of these proceedings, Mr. Jackson-Lipkin, following the procedure approved in the case of Frederick William Reynolds(1), conceded that he was unable to advance any arguments in support of the application for leave to appeal against the conviction on the two counts of robbery. All the members of this court have individually read the record of the proceedings in the lower court including, of course, the summing-up to the jury. We agree with the course taken by Mr. Jackson-Lipkin. We are fully satisfied that there was evidence to support the conviction on those two counts of robbery and there are no passages in the summing-up to the jury, whether upon the facts or upon the law, to which any valid objections which might vitiate the convictions can properly be taken. The applications for leave to appeal in respect of the two convictions for robbery are accordingly dismissed, although it will be necessary, for reasons which will become readily apparent, to refer to the facts and the evidence in support of both those charges when considering the conviction for murder. 2. In accordance with the usual practice of this court, we have treated the application for leave to appeal against the conviction for murder as the hearing of the appeal itself. We turn now to the facts of this case. 3. On the morning of the 6th-November, 1967, a police constable (P.C. 6345), whilst on hawker control duty at Yuen Long in the New Territories, was suddenly attacked, from behind, by three Chinese males. His uniform leather belt was cut or torn and his Colt O.38, loaded with six rounds of ammunition, together with its holster and attached lanyard, were forcibly taken from him. He turned only in time to see his assailants running away from him. He was about to run after them when one of them turned, pointed his finger at him and said "Don't move"; that person then also ran away. Apparently, regarding discretion as the better part of valour, the constable made no further attempt to chase his attackers but contented himself with blowing his police whistle and later returning to the police station. On the 11th January, 1968, at an identification parade held at Yuen Long Police Station, P.C. 6345 was apparently able to identify a man named LAW Lun as one of his assailants. He was apparently able to do this despite the following facts, which he admitted in cross-examination during the course of the present trial, namely, that:-
He identified the man LAW Lun not as the man who turned and pointed his finger at him but as one of the other two assailants. 4. It will be necessary to refer again to the man LAW Lun at a later stage in this judgment. 5. In the early morning hours of the 22nd September, 1971, the present appellant was arrested by a detective constable in a unnumbered hut in or near Pat Heung Village in the New Territories; he was taken to Pat Heung Police Station and later, that same day, to the Yuen Long Police Station. On the afternoon of that day, the 22nd September, 1971, at Yuen Long, the appellant was informed by a Chinese Detective Corporal that the Corporal was making inquiries into a case of robbery of a police constable's revolver at Yuen Long on the 6th November, 1967. The appellant, having been duly cautioned by the detective corporal, made the following statement:-
It is relevant to observe at this stage that the detective corporal who gave this evidence and produced his diary containing the above quoted statement - and other statements made by the appellant to which reference will later have to be made - was not cross-examined at all by the experienced counsel representing the appellant at his trial. It is implicit, therefore, that no suggestion was made to the corporal that the statement made by the appellant, and produced in evidence, was other than freely and voluntarily made. 6. On the following day, two identification parades were held at Yuen Long Police Station. At one of these parades P.C. 6345 identified the appellant as one of the three assailants who had robbed him of his revolver on the 6th November, 1967. Further, P.C. 6345 identified the appellant as being the man who had turned and pointed his finger at him and said "Don't move". 7. At about 11.30 a.m. on 9th December, 1961, two police constables in uniform were on patrol duty in Kam Tin Village. It will be convenient to refer to those constables by their numbers, to wit, P.C. 3810 (the deceased) and P.C. 5987. At that time those two constables were, in fact, in a narrow side road or lane which branches off the main Kam Tin Road about two hundred yards from the Kam Tin Police Post, which is situated on the opposite side of the main road. There were a number of shops or stalls at one side of this lane, including the Wah Cheong Wine Shop and, next to it, a cooked food stall. Immediately outside the cooked food stall was a table and benches. At the material time two Chinese males were sitting at that table. The two police officers were standing two or three yards, at most, from the table at which the two men were sitting and were talking to the female owner of the wine shop. Suddenly, and without warning, the two Chinese males rose from the table and attacked the two police constables. The evidence established beyond doubt that the purpose of the attack was to rob the police constables of their revolvers. Each policeman was separately attacked and the struggle took the police officers from the lane itself virtually into the interior of the wine shop. The wine shop itself consisted of the front open portion and two rear portions, one behind the other. In the course of the struggle in the front part of the shop, P.C. 3810 received a bullet wound in the stomach from which he died within a matter of about half-an-hour. Apart from P.C. 5987 himself, three witnesses gave evidence as to having seen the actual assault carried out on the two police officers, though no one saw the fatal shot actually fired. These three witnesses were MA Mei, the proprietress of the cooked food stall, KWOK Fung-tai, the owner of the wine shop, and her daughter, Pang Yin-wan, then 16 years of age. 8. The evidence of the woman, MA Mei, was to the effect that she served two Chinese males with noodles and that they sat down at the table outside her stall. Suddenly she heard someone call out "Don't move"; she came out of her stall and saw that one of the two men, whom she had earlier served with food, had stood up and was pointing a gun at a policeman who was then standing five to six feet away from the Chinese male. There were two policemen there. The other man who had been at the table approached the other policeman. She went away to the shop nearby to telephone; she came back a very short while later and she heard two shots come from inside the wine shop; then she saw a man carrying two guns come out from the wine shop and run down the lane. Shortly afterwards she saw another man come out from the side of the wine shop and run down the lane. This man was followed by a policeman who fired two shots at him as he ran. At an identification parade held on the 23rd September, 1971, she picked out the appellant. At the trial she said that the appellant was one of the two men she had served at her table, the man whom she had seen standing up and pointing the gun at the policeman and saying "Don't move" and the man whom she had later seen running away carrying two guns. 9. KWOK Fung-tai, the proprietress of the wine shop, gave evidence that she saw two men sitting at the table belonging to the food stall next door. She herself was inside her shop, the shop itself having an open front on to the lane. Two policemen passed by and stopped to have a chat with her. Suddenly she saw one of the two men sitting at the table stand up, produce a gun, and call to the two police constables "Don't move, give your two guns to us." Despite that order the two police constables managed to edge their way into her shop, followed by the men who had been sitting at the table. She saw one policeman back into the rear portion of the shop followed by one of the men; the other policeman was in the front part of the shop and she saw him pressing both hands on to the holster of his revolver and resisting the attempt made by the man, still brandishing a gun, to remove it from him. Then she heard a bang - and she thought it high time for her to leave. She left and took refuge in a tea shop a few shop spaces away. At an identification parade held on the 23rd September, 1971, she identified the appellant and at the trial itself she described him as the man whom she had seen standing up pointing a gun at one of the policeman and saying "Don't move, hand over your two guns" and, later, the man who, still armed with a gun, entered her shop and struggled with the policeman who was in front of the shop. 10. The 16 year old girl, PANG Yin-wan, daughter of the proprietress of the wine shop, also gave evidence. There is a cockloft over part of the wine shop. At the time of the incident the girl was in the cockloft playing with her mother's sewing machine. She saw her mother talking to two policemen. Contrary to her mother's own evidence she said that her mother was then standing outside the shop. According to her evidence, from her position in the cockloft not only could she see her mother and the two police constables conversing outside the shop, but she also was able to see, and did see, two men sitting down at the table with bowls of noodles in front of them. According to her testimony, she was the two men rise from the table and - to quote from the transcript - "forced the two policemen to retreat into the shop." When asked what then happened she said - and, again, I quote from the transcript:
She then became frightened and lay on her bed and covered her head with a quilt. Remarkable though it may be, this girl - nearly four years later - and despite the fact that she could not have had much more than a momentary glimpse of what was going on, was also apparently able to identify the appellant as one of the two men who forced the two policemen to retreat into the shop. Indeed, she described him as "at that time that person was armed with a gun." It must remain a matter for some speculation as to how much of this girl's evidence was based upon what she said she saw and what she must inevitably have been subsequently told. 11. P.C. 5987 - who in fact retired from the Police Force in September 1971 - gave a somewhat different version of events. In marked contrast to the testimony given by the three females, he said he saw no firearm at any time with the two Chinese males nor did he hear anyone shout out to either him or to his companion to hand over their firearms. According to him, the first thing he knew was when he and P.C. 3810 were both attacked from behind. In the course of the struggle that then took place the man attacking him did say to him "Don't move. Give up your gun"; but he resisted. A running struggle took place in the course of which he and his assailant backed into the wine shop and through it into a store room at the rear of the shop. All the time his assailant was trying to take his revolver from him. Then he heard a shot fired. He himself then drew his revolver and produced his whistle. His attacker then went out of the side door of the shop, through the yard and back into the lane which passed in front of the shop, and he then ran down the lane. P.C.5987 pursued him, firing his revolver as he ran but he was unable to catch him. He then returned to the police post. There he saw P.C.3810,seriously wounded. His revolver was missing from his holster and the lanyard which would have been attached to the revolver was broken. Subsequently, at the identification parade held on the 23rd September, 1971. he identified the appellant, and at the trial testified that the appellant was the man who had attacked his companion, P.C. 3810. In cross-examination, it was put to this witness that the man who attacked him and whom he subsequently chased and fired at was the man LAW Lun and that he had, in fact, succeeded in shooting him twice and wounding him. He confirmed this was correct. It is, in fact, common knowledge that the man, LAW Lun, was arrested some considerable time before the appellant. He was charged with the two robberies of the guns of the two policemen which occurred on the 6th November, 1967, and the 9th December, 1967, and he was convicted upon both charges. That trial took place some considerable time before the arrest of the present appellant. 12. In a cautioned statement made by the appellant on the 22nd September, 1971, the day of his arrest, the appellant said this:-
Immediately afterwards he made the statement referred to earlier, which related to the robbery. 13. On the following day, when formally charged with the murder of P.C. 3810 and after the usual caution had been administered, the appellant said this - and I quote the relevant part:-
14. The effect of those statements is an admission by the appellant:
15. At the trial he elected to give evidence and gave a somewhat different version of the events. He admitted, in terms, that the intention was to rob a policeman (or policemen) of his gun (or their guns), but that there were, in fact, not three but six persons involved in that plan. They were to approach the area from different directions, three coming up from the bottom end of the lane and three from the top. When he and the other two men who were with him were approaching the entrance to the wine shop, he saw - and I quote from the transcript of the evidence - "Law Lun, Wong Chak and Chan Cheung, surround the policemen". He went on to say - and again I quote from the transcript:-
He denied that he ever picked up the wounded policeman's revolver. 16. Now it was never put to the witnesses for the prosecution as part of the case for the defence, that there were not two but at least three - and possibly more - persons involved in this common design to rob a policeman or policemen of his revolver, or their revolvers. It was never suggested to the witnesses for the prosecution that there were three persons sitting at the table - or two at the table and a third one lurking nearby. The case for the defence proceeded on the basis that the appellant was not one of the two persons sitting at the table. The case for the prosecution proceeded throughout on the basis that it was the two men sitting at the table who had assaulted the two policemen in an attempt to rob them of their revolvers and that, although no witness called for the prosecution saw the fatal shot actually fired, the inference was irresistible that it was one of those two men and that it was actually the man identified as the present appellant who fired that fatal shot. In the course of his final address to the jury - and almost at the conclusion of it - the Solicitor General introduced for the first time, in the course of the trial, the doctrine of common intention. Where it is intended to rely upon a common intent as an alternative basis of the Crown's case this should normally be made clear in the opening. As this was not done in the present case it would appear that counsel came to the conclusion in the course of the trial that the evidence that the appellant was the assailant with the gun was not as strong as had been anticipated, with the result that the jury might find that the appellant did not himself fire the fatal shot. It is only upon that basis that we can understand why the case was not left to the jury without the added complication of the alternative approach. It would seem clear that the learned trial judge himself was somewhat surprised by the introduction of this aspect of the case in the concluding stages of the trial but, the issue having been raised by the Crown, even at that eleventh hour, the learned trial judge had no real alternative but to explain the doctrine of common intention to the jury. 17. However, the doctrine of common intention having been introduced into the trial in its concluding stages, it is precisely in relation to that aspect of the case that Mr. Jackson-Lipkin based his main ground of appeal. Mr. Jackson-Lipkin contended that if the doctrine of common intention was to be relied upon by the prosecution, then there must necessarily be some factual basis upon which to found that principle and some evidence to support it or from which the jury could draw an inference - and necessarily an irresistible inference - as to what that common intention was. If common intention was relied upon then at least some questions should have been put to the appellant in cross-examination to elicit from him what the common intention was, or what the prosecution averred it was. If the jury were left in doubt as to whether the appellant had in fact been correctly identified as the man who entered the shop and who struggled with P.C. 3810 immediately before the fatal shot was fired, then the case against him rested upon his own cautioned statement to the detective corporal on the 22nd September, 1971, (Ex.P.17A), in the course of which he said Wong Chak was pointing a gun at the policemen and called out "Hands up", that he himself and Law Lun went up to snatch the policeman's revolver, that Law Lun struggled with one of the policemen, that Wong Chak fired his gun, that he saw the policeman fall to the ground and that he himself then picked up the injured policeman's gun and left. If the doctrine of common intention was to be relied upon, it pre-supposed the existence of a common design:-
It is Mr. Jackson-Lipkin's complaint that there was no evidence of any such common design and no questions were put in cross-examination to the appellant to substantiate such a common design. 18. In the concluding stages of his final address to the jury, the Solicitor General dealt with the alternative aspect of the case for the Crown, relying on common intention, in these terms:-
The direction of the learned trial judge to the jury on this aspect of the case - common design - was in these terms:-
What was it the judge thought to be "too extravagant a proposition"? The answer would appear to be the proposition that, on the evidence, the jury could find that the appellant had engaged in the robbery of the constable knowing his fellow robber to be armed, both having the intention to commit robbery with violence with the knowledge that that gun would be used if there was any resistance to their common purpose. We think that the learned trial judge was seeking to convey to the jury his own view that the jury might well come to the conclusion that the issue of common intention was not a matter with which they need concern themselves. There are two possible reasons why he may have been of that view: first, he may have thought that the proposition that the gun was fired by a third person, WONG Chak, as alleged by the appellant in his cautioned statement, was remote in the extreme: secondly, he may have thought that even if the jury were to find that the gun was fired by someone other than the appellant the evidence of common intent was too slight for them to find that a common intent existed. It is important to emphasize that he did not say that it was not open to the jury to find, on the evidence, that the appellant was not the killer nor that it was not open to them to find such a common intent as would support a conviction for murder. Therefore he necessarily left both issues open and no objection could be taken to the judge exercising his undoubted right of expressing his own view of the facts as long as he made it abundantly clear to the jury, as indeed he did, that the final decision on all issues of fact was exclusively for their determination. In our view the direction he gave was undoubtedly correct in so far as it went, but the question is whether it was adequate. The judge directed the jury that a conviction on the basis of common intent need only to be considered if the jury was not satisfied with the evidence of identification given by the prosecution witnesses. That was correct. He further said that the necessary evidence to support a conviction on the ground of common intent might be found in the appellant's statement, E.x. P.17A. Although Mr. Jackson-Lipkin submitted that there was no evidence of a sufficient common intent, we think that direction also was correct. Indeed there was other relevant evidence besides that statement, e.g. the other cautioned statements. The evidence of a common intent may have been slight but we agree with the learned judge that it was not so slight that the issue of common intent should have been withdrawn from the jury. To the argument that the appellant should have been cross-examined upon the issue if it was intended to rely upon a common intent, the answer must be that the appellant told a story in the witness-box which was inconsistent with any common intent other than an intent to go to the cinema, so that he would inevitably deny a common intent to kill or cause grievous bodily harm. There could be no question of the appellant being taken by surprise, since it was he himself who had suggested that a fellow-robber had the gun. 19. We would mention that the learned judge employed the words "use the gun". One can "use" a gun which is not loaded or which is otherwise incapable of being fired. One can use it as a club - although then the intention will probably be to cause at least grievous bodily harm. On the other hand one can use it merely to frighten those who see it, by making them believe it is loaded and capable of being discharged. However, we think the jury must have understood that the judge and counsel employed the word "use" as meaning "discharge" or "fire" since that is the normal use of a gun and the use for which it is designed. It was never any part of the appellant's case that he knew his fellow-robber had a gun but thought he intended to use it merely to frighten the constables, and we think the omission to advert to such a remote possibility is not fatal to the conviction. The possibility that the killer went outside the limits of any common intent was even more remote in the present case than it was in Reg. v. Lovesey(2), where the court said:-
It must be remembered that the complaint in that case was that after correctly directing the jury about common intent the learned judge had concluded by telling them that the two offences of robbery and murder stood or fell together. The effect of that was to negative part of the direction on common intent. In the present case the issue was left to the jury. It is true that there was no express direction as to the proper verdict if the jury thought that the common intent (if any) might have been merely to frighten, but it was implicit in the direction on common intent that they could not find the appellant guilty of murder. It might have been better to say so expressly but we do not think the jury would have been in doubt as to their duty then to acquit - even in the unlikely event of their coming to the conclusion that common intent was a live issue. 20. There is clear authority for the proposition that if, upon the facts given in evidence, there is a defence available to the accused, it is the duty of the trial judge to put it before the jury even though it may not specifically have been relied upon by the accused himself or by his counsel. In this respect, although not relied upon as a ground of appeal, we have considered whether there was any basis upon which the trial judge could, or should, have left the lesser verdict of manslaughter to the jury on the basis that if they accepted the evidence of the identification of the prosecution witnesses, or any of them, that it was, in fact, the appellant who attacked P.C.3810, the fatal wound might have been caused by the accidental discharge of the weapon in the course of a struggle to over-power P.C.3810 and wrest his revolver from him. However, for a variety of reasons, we are satisfied that no such obligation fell upon the trial judge to put any such defence to the jury. First and foremost, the appellant himself at all times denied that he assaulted P.C. 3810 and denied that he had, at any time, attempted to wrest his revolver from him. It was not, therefore for the trial judge to speculate upon a defence which had never been raised. Secondly, if there had been any such struggle, the gun must then, of necessity, have been fired close to the body of the deceased and at short range. The ballistics expert testified to the effect that if a bullet was fired within six inches of a person, one would then expect to find scorch or burn marks on the clothing or body of the person, but not if it was fired from a further range. Similarly, he said that one would expect to find powder marks, or what he described as "carbon tattooing", on the body or clothing if the gun was fired within a range of two feet six inches to three feet of the body but not if fired from a further range. However, Dr. Ong, the Forensic Pathologist, who examined the body of the deceased, specifically said, in answers to questions put to him in cross-examination, that when he examined the entrance wound and the clothing of the deceased, he found no burn or scorch marks or carbon tattooing on the body or the clothing of the deceased. Such evidence was, therefore, wholly inconsistent with any suggestion that the bullet was fired at close range in the course of the struggle. 21. For these reasons, we are satisfied that this appeal must be dismissed. 29th February, 1972. Representation: Jackson-Lipkin (K.Y. Woo & Co.) assigned for Appellant. Sneath, Q.C., S.G. & P.K. Lee for Crown/Respondent. (Judgment read by Huggins, J.) (1) (1947) 32 Cr.App.R. 39. (2) (1970) 1 Q.B. 352, 356. |