Chan Kwai Kam and Others v. The Queen

CACC000099/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.99 OF 1968

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Coram: Briggs, Mills-Owens & Huggins JJ (Full Court)

Date of Judgment: 24 June 1968

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JUDGMENT

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1. The appellant and six other persons were charged with the murder of Yeung Siu Shek on the 15th of September, 1967. He appeals against conviction.

2. The evidence against this appellant was that he instigated a robbery which was committed on 6th August by Ng Shing and Fong Ngor, the appellant being himself in the vicinity at the time of the robbery. The victim of the robbery, Chan Wo Kam, was a clansman of the appellant and the deceased obtained from the appellant part of the proceeds. Chan Wo Kam appears to have discovered who had instigated the robbery and to have been looking for repayment. Chan Wah Ling acted as mediator and on 12th September he called on the deceased to discuss the matter. This visit ended with a fight in which the deceased, with the aid of a neighbour, gave Chan Wah Ling a thrashing. As a result Chan Wah Ling was very angry and the next day there was a meeting of many members of the Chan clan, at which reprisals against the deceased were discussed. The appellant was not present at this meeting but arrived towards the end of the luncheon which followed it. He was reprimanded by one of those present for starting the trouble by instigating the robbery of a clansman and later he said to another member of the clan: "Let two of us go and hit back" and the witness who gave this evidence inferred from the context that the person to be assaulted was the deceased. On the evening of 14th September the appellant was seen wearing a shirt which, after the assault, was found to be blood-stained. On that night the appellant slept in a house (not his own) with three others who have been convicted of the murder of the deceased upon evidence which we have been satisfied was amply sufficient. Early on the morning of 15th September the appellant was present with the same persons in a restaurant and subsequently, at the time of the murder, in the room of the deceased's flat where the assault took place, although the evidence suggests that he took no active part in the assault. The appellant subsequently told a story which was essentially the same as that told by the other three with whom he had spent the night, that they went to see the deceased to ask him for the return of the money he had received from the robbery and that the deceased attacked them. The fact that all the wounds inflicted on the deceased were on the legs doubtless lad the jury to the conclusion that they were inflicted neither in self-defence nor as a result of a sudden quarrel but in the execution of a conspiracy to maim.

3. The main point which has caused us anxiety is whether it was open to a jury on this evidence to convict the appellant of murder or whether the case against him should have been withdrawn by the judge. If as a matter of law there was no case for him to answer the evidence which he subsequently gave did not supply what was wanting. We say at once that on any view the case was one of the strongest suspicion.

4. What the prosecution had to prove was that the appellant, as principal in either the first or second degree, murdered the deceased. This required that they should prove an intention on his part (a) that the deceased should be assaulted and (b) that the deceased should suffer, as a result of the assault, at least grievous bodily harm. We never doubted that there was sufficient evidence of (a): the evidence (which the jury were entitled to believe although it was most strenuously attacked) that he had spoken of going and hitting back, coupled with the evidence of his presence at the time of the assault, could alone justify on another occasion a conviction for assault. On the principle stated in Mawaz Khan v. Ragina⁽¹⁾ the fact (clearly found by the jury) that the appellant and the other persons present at the time of the attack told a common but false story as to what happened on that occasion was indicative of the appellant's guilt. But it is not enough to show that he had a guilty mind and counsel for the appellant did not contend that on this evidence it would be wrong to infer that the appellant went to the deceased's house with intent that the deceased should be assaulted. What he contends is that the mere fact that in the event the assault took the form it did is not evidence from which one could properly infer that the appellant intended it should take that form. It may be put in this way: // a man may be presumed to intend the natural consequences of his own acts, but should he be presumed to intend the natural consequences of another's acts unless it is affirmatively proved that he knew the intention of that other? // It is said that where there is no evidence from which it is a reasonable inference that he must know the intention of the other no prima facie case is made out and it is further said that there was here no such evidence.

5. This is the crux of the case. Was there prima facie evidence that the appellant had the necessary intent? Cross in his book on Evidence sets out four degrees of cogency of evidence varying from "insufficient evidence" to "conclusive evidence" and between these two extremes he puts "prima facie evidence" in its two senses. The first sense is:

"          Where a party's evidence in support of an issue is sufficiently weighty to entitle a reasonable man to decide in his favour, although, as a matter of common sense, he is not obliged to do so."

This is the sense in which the phrase is used when it is said that the judge must withdraw the case from the jury where there is no prima facie evidence.

6. What is the extent to which inferences may properly be drawn has been considered in relation to the failure of a party to give evidence, or, as here, in relation to his giving evidence but not suggesting an explanation which the evidence on the other side leaves as a possible but unlikely explanation. In R. v. Burdett⁽²⁾ Chief Justice Abbott said at p.161:

"A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained, by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime, is or can be given; the man who is charged with theft, is rarely seen to break the house or take the goods; and, in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know, that, where reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtilty and refinement."

Mr. Justice Best, who had heard the case at first instance, said at p.121:

"We are not to imagine guilt, where there is no evidence to raise the presumption. But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. Nor is it necessary that the fact not proved should be established by irrefragable evidence. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just."

R. v. Corrie⁽³⁾ is to the same effect and we have come to the conclusion that the judge properly let the present case go to the jury. The evidence would clearly justify a finding that the appellant went to the flat with intent to assault and even though he may have taken no active part in the assault his presence at a time when the actual assailants carried out what, on the evidence the jury might well find to be an assault with a deliberate intent to maim led strongly to the conclusion that his intent was the same. It was a case where, in the absence of rebutting evidence, the jury might reasonably presume that the appellant, far from being taken by surprise when the assault proceeded with such extreme violence and with such an obvious purpose, knew very well what was afoot. It would in our view be to depart from reality to hold that the appellant might conceivably have intended some less degree of harm to be done, in the particular circumstances of the case and when he never suggested that the others went beyond what had been agreed. In the absence of such a suggestion it is not necessary to consider the cases dealing with the liability of co-adventurers for acts going beyond what was tacitly agreed (e.g. R. v. Anderson and Morris⁽⁴⁾).

7. Counsel for the appellant further submitted that the summing-up was defective on a number of points. First he complained that the judge did not direct the jury as to which parts of the evidence were admissible against the appellant and tell them that some of the evidence was not admissible against him. He said that of the mass of evidence given only a very small part related to the appellant and some of the other evidence was highly prejudicial in that it tended to suggest that every member of the Chan clan was planning to avenge Chan Wah Ling with the use of weapons. It is true that the learned judge did not deal with the case against each accused separately as he might have done but we do not think there is a duty on a judge to tell the jury that they must not relate to one accused evidence which could not reasonably be related to him. It is different where a statement is made to the police by one accused which implicates a co-accused, for there a very real risk arises unless the jury are expressly warned. We see no reason to believe that the jury considered any evidence as material to the case against the appellant other than that which could properly be said to implicate him. In particular we think the jury would be under no misapprehension that the appellant was party to a conversation at which the use of weapons was discussed.

8. Then it was argued that the judge wrongly told the jury that the defence of the appellant was the same as that of the three other men present at the time of the assault. We think, with respect to counsel, that he is using the word "defence" in a sense which was clearly never intended by the learned judge. The judge used the word in the sense that they all gave a similar account of what happened at the time of the assault and of their intention in going to the deceased's flat. When that is understood then what the judge said is unobjectionable: this was "the defence". Counsel uses the word in the sense that the "defence" of the appellant was that the prosecution had not made out its case against him beyond reasonable doubt. In that sense it is true, as we have said, that the judge did not deal separately with the case against the appellant, but he did make it clear that a common intent must be proved and that the common intent must be one to cause at least grievous bodily harm. He expressly drew the jury's attention to the possibility that one co-adventurer might go beyond what had been tacitly agreed. Having done that he subsequently assumed at various points that the jury would be satisfied of that common intent. There was a minor inaccuracy in that the appellant did not say the party was admitted to the flat by the mother-in-law of the deceased, but that could not possibly have had a material effect upon the verdict.

9. For the reasons given we dismiss this appeal.

Dated 24th June, 1968.

Representation:

Charles Ching (S.F. Sun & Co.) assigned for 4th Appellant.

Addison C.C. & C. Wong C.C. for Crown/Respondent.

(1) (1967) ...(illegible) All E.R. 80.

(2) (1820) 4 B. & A. 95.

(3) (1904) 68 J.P. 298.

(4) (1966) 2 All E.R. 644.