Lui Yau-tak v. The Queen
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CACC001333/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ. A. Date of Judgment: 8th June 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. There can be no doubt but that the learned District Judge formed a highly adverse opinion of the Appellant. This appears from the forcible language he used in his Judgment and his Reasons for Sentence and from the extremely heavy sentence which he imposed. The substance of the appeal is that as a result the learned judge took an unjustified view of parts of the evidence which were open to a more favourable construction. 2. The charges were shooting with intent to do grievous bodily harm and wounding. The Appellant is a detective police constable who, at the material time, was off duty, and the victim named in both charges was the same, one Chan King-yuen. The incidents occurred at about 4 a.m. in the Solmar Restaurant in Kimberley Road, Kowloon, which to the knowledge of the Appellant was a resort of bad characters. Indeed, he admitted that one, if not the only, reason for his going there that morning was "on the off chance that I might see or hear something of interest to me in connection with my work as a detective". Earlier he and a friend and an acquaintance of that friend had spent several hours at a night-club, but, apparently at the suggestion of the friend, they went on to the restaurant. There they sat in a booth a short distance from the door. Chan King-yuen was at the restaurant with two persons whom he described as "drinking friends" and one of whom, Alan Chan, has admittedly been convicted of offences of violence. Chan King-yuen appears to have gone out of the door of the restaurant and there had a heated discussion with a girl. Another girl, Pui Sze, with whom the Appellant was acquainted, also took some part in the discussion. She then came back and sat next to the Appellant, he being inside the booth up against the wall. The Appellant asked Pui Sze whether she was having trouble but she said she was not. However, at this point Chan King-yuen came in through the door and abusive words passed between him and the Appellant. The learned judge did not think it really mattered which of them picked the quarrel or which of them struck the first blow in the fight which followed. As a matter of law he was no doubt right, but it could alter the whole complexion of what ensued. There was evidence that the Appellant lent along the table and aimed a blow at Chan King-yuen's face. There is a dispute as to whether the blow landed, but none that Chan King-yuen and his drinking friends, all of whom were of larger build than the Appellant, proceeded to "rough up" the Appellant. In the course of the fracas the Appellant bent down and drew his pistol from a holster strapped to his ankle. He says he did this after he had been struck on the head with a jug or bottle, but Alan Chan, who admits having struck that blow, says that the reason for his striking the blow was that he was the Appellant apparently reaching for a weapon. At any rate, Alan Chan managed to wrest the pistol from the Appellant, while the Appellant himself sat back inside the booth. 3. It is common ground that at this point there was what has been described as a hiatus. It is common ground that Chan King-yuen and his drinking friends realised that they had been assaulting a police officer; one of the Appellant's companions suggested that the gun be returned and the incident forgotten; and Alan Chan reluctantly passed the pistol to the Appellant's companion. The case for the Crown is, however, that the Appellant's was so angered at having had his gun taken from his that he snatched it from his companion and deliberately shot Chan King-yuen as he was trying to leave, wounding him in the arm. The case for the defence was that the Appellant snatched back his pistol and shot Chan King-yuen, partly with the object of arresting his assailants and partly because Chan King-yuen appeared to be about to attempt to retake the gun. 4. This dispute of fact might have been difficult to resolve under the most favourable conditions. As it was the conditions were far from favourable: the lighting was extremely dim, there was sound blaring out through an amplifying system and there was considerable shouting. Added to all that the witnesses were either at such close quarters that it would be difficult to see events in perspective or so far away that in the available light it would be difficult to see clearly at all. 5. However, we must complete our outline of the narrative. The Appellant took hold of Chan King-yuen and went with him to a long table further inside the restaurant. Again there is a dispute: the prosecution allege that the Appellant was violently propelling Chan King-yuen, whilst the defence say that he was helping him. When they reached the table the Appellant struck Chan King-yuen on the head with the pistol, causing the wound which is the subject matter of the second charge. Here there is a dispute as to the position which Chan King-yuen was in when he was struck and as to the cause of the assault. Some witnesses say that Chan King-yuen had sat down in a chair whilst others say that he was still standing up: the prosecution allege that the Appellant struck him once again out of anger at the previous taking of his gun whilst the defence maintain that Chan King-yuen made an attempt to snatch the Appellant's pistol for the third time and that the Appellant struck him to foil this further attempt. 6. It cannot be gainsaid that there was evidence which, if properly considered and reasonably believed, would support the verdicts entered by the judge. Mr. Niamatullah has been compelled to submit that the evidence was not properly considered and that it was such that no judge could reasonably be satisfied that the Appellant was not, in relation to both charges, acting in self-defence. We think that if the evidence had been properly considered we could not say that the verdicts were unsafe or unreasonable. However, with respect to the learned judge we are in doubt whether the evidence was properly considered, for reasons which I must endeavour to elaborate. 7. I have already mentioned that the judge did not think it really mattered who picked the quarrel in the first place or who struck the first blow. If the Appellant was initially an innocent party who was attacked by a gang of hooligans, it might possibly justify his having drawn his gun in the first instance. If he started the fight and, on finding that he was being worsted, then sought to enforce his attack with a weapon, self-defence could hardly enter into the picture. However, we are content to assume that the real reason the learned judge made no finding as to the start of the fight was that he was left in doubt on the matter. 8. That there was a hiatus before the shooting of Chan King-yuen is borne out by the Appellant himself, for he says:
The learned judge commented on this passage as follows:
With respect that assumes that the person at whom the gun is pointed contemplates that the armed man is likely to fire it. There are many circumstances in which he will think the risk to be sufficiently slight to be ignored. There was evidence here that the Appellant said: "Do you think I dare not open fire?" The judge made no finding whether that was said, but if it was it certainly suggests that Chan King-yuen was not overawed by the sight of the gun, as the judge assumed he would be. It was therefore for serious consideration whether Chan King-yuen did make a move towards the Appellant so as reasonably to raise in the Appellant's mind a fear of a second snatching. 9. Nor is it clear to us why the judge thought it curious that the Appellant should have feared this possible second snatching to such an extent that he fired his pistol whereas he did not fire it when Chan King-yuen made, according to the Appellant, a much more obvious attempt to snatch the weapon near the long table. At the time of what I have called the third attempt the Appellant had had a short period to gather himself together after the shooting, he had reason to think that his other assailants no longer posed any threat to him and he knew that Chan King-yuen was a wounded man. Moreover, as we have seen, some of the witnesses say that Chan King-yuen was sitting down when the alleged attempt at snatching was made. The Appellant might well have decided that a blow with the butt of the pistol was more appropriate than the firing of a second shot. We might add that it does seem a little unlikely that if the Appellant pistol whipped Chan King-yuen out of anger at the original snatching of his gun he should not have done so before they reached the long table. A piece of evidence which weighed heavily with the learned judge was that of Chan King-yuen that "about the time at which the Appellant opened fire" he said: "Kill you. Curse your family" and if that was true and was said before the shot was fired it pointed strongly to an unlawful shooting. The judge appreciated that this evidence was uncorroborated but he accepted it. He was entitled so to do but the absence of corroboration of so vital and memorable a remark must necessarily weigh with an appellate court which is called upon to decide whether the verdict is unsafe and unsatisfactory. 10. The learned judge commented that the Appellant did not, "at least in terms", say anything to the first police officer to arrive at the scene about self defence or arresting any of his assailants. The significance of his failure to mention either of these matters in terms escapes us. The evidence of that police officer was:
That was a clear allegation of self defence. 11. Finally, the judge said in relation to the wounding charge:
The Appellant never contended that this wounding was justifiable because it was in the course of effecting Chan King-yuen's arrest: what he said was that it was reasonable in the light of the third attempt to snatch the pistol. 12. This was a difficult case for the judge to decide and is a difficult case for us to decide. In the end all we can say is that we have been persuaded that the verdicts were unsafe and unsatisfactory and that the convictions must be quashed. 8th June 1978. Representation: Niamatullah (Ip, Ku & Stoppa) for appellant. White for Crown/Respondent. |