Au Pui-kuen v. The Queen

CACC000135/1979

-----------------

Coram: Roberts, C.J., Cons & O'Connor, JJ.

Date of Judgment: 24 October 1979

-----------------

JUDGMENT

-----------------

Roberts, C.J.

1. AU Pui-kuen was charged before Mr. Justice Leonard and a jury with the murder, on the 9th January, 1976, of LAI Hon-shing.

2. After a trial which began on the 15th January, 1979 and was concluded on the 24th January, 1979, the appellant was convicted of manslaughter and sentenced to five years' imprisonment.

3. He has sought leave to appeal against both conviction and sentence.

4. At the conclusion of the argument before us on the 11th October, we refused leave to appeal against conviction and sentence and announced that we would give our reasons later. This we now do.

Facts

5. It was not disputed that the victim LAI Hon-shing died as a result of two bullet wounds from a revolver fired by the appellant on the evening of the 9th January, 1976.

6. At about 9.20 in the evening of that day, the deceased, Lai, with two young friends of his, LEE Wai-tang and WONG Hon-keung, were walking along Argyle Street in Kowloon, intending to cross Sai Yeung Choi Street, going in the direction of Nathan Road.

7. The accused, a constable in the Royal Hong Kong Police Force, who was off duty at the time and in plain clothes, was driving his car down Argyle Street and turning slowly into Sai Yeung Choi Street. With him in the car was a woman friend.

8. As the appellant drove his car into Sai Yeung Choi Street, the vehicle came into contact with one of the young men, who shouted at him. The appellant parked his car a few feet inside Sai Yeung Choi Street, got out and approached the group of three young men.

9. The appellant asserted that he had parked his car and approached the young men in order to see what the matter was and whether anybody had been hit. Whatever his motive, it appears that at this point obscene language was used both by the appellant and by the young men.

10. The exchange of insults swiftly became an exchange of blows. There is a conflict as to whether the first blow was struck by the appellant or by one of the young men, but in view of the subsequent events, this does not seem to us to be of any real significance.

11. The fighting took place in the street, a few feet behind the appellant's car. The appellant got the worst of it, since a later examination of the appellant showed that he must have received several blows, causing haematoma, bruising and laceration of the face and hands. The young men did not suffer any injuries in this fight, during which the appellant was knocked to the ground. Towards the end of the fight, the appellant was forced back against the railings which divided the pavement from the street not far from the junction of Sai Young Chei Street and Argyle Street.

12. It is not in dispute-

Defence

13. The appellant's story which he told in evidence at the trial was that during the course of the struggle with the three young men, someone had thrown an arm round his neck from behind and that he also felt someone touching his waist.

14. As a result, he said, he became scared that they were looking for his gun and that in order to protect himself he drew the gun from where it was in a holster at his waist with his left hand.

15. He added that when he drew his gun, he wanted to shoot it towards the sky, though he did not know what he did because he was all confused. He could not remember pulling the trigger of the gun but that he heard the report of a gunshot and that the person holding his neck then released him.

16. The appellant's evidence could therefore have been construed as amounting to self-defence or accident. Though not so presented by the appellant in his evidence, it would also have been open to the jury to find that there had been a sufficient degree of provocation to reduce the verdict to one of manslaughter.

Crown Case

17. The Crown case, as opened, was that the appellant fired the two shots which killed Lai in Sai Yeung Choi Street, but after the fist fight had finished and the three young men had run away from the appellant.

18. The evidence of some of the Crown witnesses could be interpreted in this way. But others spoke as to two shots being fired in quick succession in Argyle Street, while the appellant was chasing the three young men.

19. Which version was accepted was essentially a matter for the jury.

Verdict of jury

20. The verdict of manslaughter is open to various interpretations-

21. If the jury had accepted the appellant's evidence, - namely that the firing of the revolver had been "accidental" , i.e. that the appellant pulled the trigger of his gun without intending to do so and without such a degree of recklessness as to amount to culpable homicide - they could only have acquitted. We cannot feel surprised, in view of the evidence, that the jury should not have done so.

Unsafe and unsatisfactory verdict

22. Counsel for the appellant conceded that there were very few grounds of criticism of the summing-up of the trial judge which he could advance.

23. His main ground of appeal was that, on a consideration of the whole of the evidence, the verdict was unsafe and unsatisfactory.

24. As to this, we can only say that in our view the evidence against the appellant was strong and that we are left in no doubt that the verdict of the jury can be supported by the evidence and was a wholly reasonable one.

Accident

25. Counsel for the appellant submitted that the judge had inadequately directed the jury with regard to the defence of accident. The judge dealt with accident in two passages of his summing-up:

26. Counsel for the appellant was unable to argue that the direction with regard to accident was wrong. He submitted, however, that it was inadequate, in the sense that the question of accident was crucial to the defence and that the judge should have dealt with it more fully in his summing-up.

27. The story told by the appellant at the trial was considered by the judge in his suming-up in great detail.

28. This includes the following references to accident -

29. We consider that the judge dealt with correctly and adequately both law and fact relating to the defence of accident.

Ballistic evidence

30. Mr. Cimino, a ballistics expert, gave evidence for the Crown that the weapon had been fired three times on the evening in question. When asked to express his opinion as to how far the gun must have been from the victim's body when the bullets were fired, he said that the absence of powder burns or powder deposit on the pullover which the deceased had been wearing when he was shot showed that the gun could not have been closer to the victim's body than eighteen inches.

31. Doctor Yip, a Forensic Pathologist called by the Crown, also expressed the opinion that the gun must have been at least eighteen inches away from the victim when it was discharged at him, by reason of the absence of powder burns.

32. Mr. Cimino also gave evidence about "the wobble of bullets shortly after they leave a gun." Mr. Cimino's opinion was that this tail-end wobble might have an effect on the shape of the mark which a bullet would make on entry into an object within the first three to four feet from the barrel of the gun.

33. However, he added that so far as a bullet wound on a body is concerned, there were so many variables that he could not say that the wobbling of the bullet would make any discernible difference to the entry wound. On the other hand, Dr. Yip would have expected some irregularity in the outline of the wound; in fact he found that the entry wounds in the victim's body were perfectly circular. However he pointed out that, as a pathologist, he was not in a position to say after what distance the instability of bullets would disappear. The most he was prepared to say that the bullets were not from a "near discharge". He clarified this as meaning "a few inches".

Application to call fresh evidence

34. Against this background, an application was made by counsel for the appellant for leave to call an additional witness, a Mr. John McCafferty, an expert in firearms, on the ground that if his evidence had been put before the jury the appellant "could have been acquitted."

35. The application was supported by an affidavit sworn by the appellant's solicitor, which set out the substance of the evidence which Mr. McCafferty would have given, to the effect that the assumption by the pathologist of the absence of any irregularity in the entry hole was indicative of "long rather than short range" is fallacious, possibly due to a misunderstanding of the nature of the so-called tail wobble.

36. As to this, we were somewhat puzzled, since it is clear from a reading of Dr. Yip's evidence that all he said was that the absence of irregularity in the entry hole showed that the gun must have been "more than a few inches" from the point of discharge.

37. Mr. McCafferty would also have given evidence that tail wobble could be ruled out as a means of determining range of firing from only the examination of a bullet entry hole and that in the absence of gunpowder marks on the target there is no known method of determining the range of firing from an examination of only the entry hole.

38. It must be observed that counsel for the defence (who also appeared on the appeal) knew at the outset of the trial that the Crown proposed to adduce evidence as to the effect which the wobbling of a bullet might have on entry wounds at close range. Nevertheless, although knowing this, he made no effort at any stage during the trial to apply for an adjournment so that he could take advice on this matter or so that he could call evidence about it in rebuttal of the Crown's case.

39. Nor does counsel for the accused appear, at any time during the trial, to have seriously tested, or probed, or attacked the evidence of either Mr. Cimino or Dr. Yip with regard to the possible effect of the wobbling of the bullets.

40. Stafford v. Director of Public Prosecutions⁽¹⁾ sets out the principles which should govern an appellate court in its consideration of additional evidence. The judgments delivered in that case suggest that the correct approach is not for the appellate court to ask itself whether, if what fresh evidence had been available at the trial, the jury might have returned a verdict of not guilty. While this is said to be a reasonable approach, nevertheless the appellate court must ask itself whether the additional evidence might have induced a reasonable doubt in the minds of its members if they had constituted the jury.

41. We have no doubt that, had this additional evidence been available before us, it would not have induced in us a reasonable doubt as to the correctness of the jury's decision.

42. The effect of Mr. McCafferty's evidence would have been that there is no way of telling, from the shape of an entry wound in a human body, the distance from the body at which the firearm was discharged. The affidavit does not suggest that he would have challenged the prosecution evidence that the deceased must have been at least eighteen inches from the point of discharge.

43. Mr. Cimino said that he was unable to express any view as to distance of discharge of a gun from a body by reason only of the entry wounds. Dr. Yip's view was that the wounds in this case were circular, and that all he could say was that the discharge must have been more than a few inches away from the body.

44. In essence, Mr. Cimino said wobble marks are possible on an entry wound, but he could not estimate at what distance.

45. Dr. Yip said there were no marks, and that this meant the gun must have been a few inches away.

46. Mr. McCafferty would have said that there could be no wobble marks, and that nothing could be told from their absence. This would still have left the absence of burn marks, which puts the gun eighteen inches or more away from the victim at the moment of firing.

47. One passage of the summing-up indicates that the jury could regard the joint effect of the evidence of Mr. Cimino and Dr. Yip to be that the shots were fired from a distance of three to four feet.

48. Even if Mr. McCafferty's evidence were to negative this suggestion, we do not believe that it would have made any difference to the verdict. A distance of three feet between gun and victim in the course of a confused struggle of a nature described by the appellant would not have rendered his story incredible.

49. No doubt the Crown hoped that the ballistic and pathological evidence would be such as to establish beyond doubt that the firearm must have been discharged at such a distance as to rule out any suggestion that it had been fired during the course of the physical struggle. But. in the event, neither the evidence of Mr. Cimino nor that of Dr. Yip was as strong as this. Although their evidence was entirely consistent with the Crown's case, it could also have been regarded by the jury as consistent with the story told by the appellant.

50. Being satisfied, as we have said, that we would not have been left in any reasonable doubt by the evidence of Mr. McCafferty, if it had been given in accordance with the summary contained in the appellant solicitor's affidavit, we refused leave to the appellant to call this additional evidence.

51. We see no reason to interfere with the sentence. We do not regard it as excessive, on whichever of the possible bases for a finding of manslaughter the jury reached their verdict.

Representation:

A.M. Niamatullah (D'Almada Remedios & Co) for Appellant

T.M. Gall for the Crown/Respondent

(1) (1974) A.C. 878 HL.