R. v. CHOW SIK WAI

IN THE COURT OF APPEAL

1994, No. 586
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. On 10 November 1994 the applicant was convicted by a jury before Stuart-Moore J of murder. He now seeks leave to appeal that conviction.

2. The indictment against him reads that the applicant on 7 August 1990 at the open space outside Block 1, Lower Ngau Tau Kok Estate, Kowloon, together with other persons, murdered Lau Siu Kong ("the deceased" also known as Fei Chai).

3. It was an admitted fact that in November 1991, four accused were indicted for the same murder. They pleaded not guilty to murder but guilty to manslaughter. The court and the prosecution accepted those pleas. They were sentenced to various terms of imprisonment ranging between 4½ and 6½ years.

4. The applicant absconded shortly after the day of the killing to China. He was back in Hong Kong in January 1994. His trial for the present offence commenced on 27 October 1994.

5. The prosecution's case against this applicant was as follows.

6. On 6 August 1990, the deceased's younger brother Lau Siu Fai and his friends were attacked by a group of about ten persons at a basketball court. One of the ten assailants was the applicant, whom he knew. Lau Siu Fai later told his brother, the deceased, about the attack. The deceased was associated with the Sun Yee On Triad Society, and he gathered together a number of his Sun Yee On friends to attack Lau Siu Fai's assailants.

7. On the following evening, a group of some 14 persons gathered at the Sun Po Restaurant and made their way to the playground at the Ngau Tau Kok Estate. Amongst that group of people were Chow Man Lung ("Chow") and Dai Cho Yee ("Dai") who later became the only eye witnesses for the prosecution.

8. When they arrived at the playground they found a group of people waiting for them, armed with beef knives and pipes. According to Chow and Dai, the applicant was one of that armed group which surrounded the deceased who was grabbing a man called Ah Foon by the neck at the playground. Ah Foon belonged to the applicant's group. Chow and Dai said the applicant had a beef knife in his hand. The defence claimed that the deceased was killed in self-defence by the applicant's gang because he had grabbed Ah Foon by the neck.

9. The applicant's case was inter alia that he was not at the scene at all; he did not have a beef knife, and he was not one of those who surrounded the deceased. The defence also said that whilst the defendant was there at the playground, the very most that he did in connection with this incident was to try to help Ah Foon when he could see that he was about to lose consciousness. He had only gone down there after dinner to watch gambling. There were gamblers there and he was watching them but he had nothing to do with the quarrel between the two groups.

10. The identification evidence of Chow and Dai was crucial to the prosecution's case. The learned trial judge in his summing up directed the jury that there was nothing which supported the evidence of identification and the jury were left with only the evidence of these two witnesses.

11. As to the evidence of Lau Siu Fai, he recognised a number of his assailants including the applicant. He had known the applicant for about a year and had no doubt he did the attack upon him. No identification parade was held for this witness.

12. Chow had a conviction for drug trafficking and was "looked after" by one Cha Chai, a member of the Sun Yee On Triad Society. He had known the applicant for about two years. He said he saw the applicant holding a beef knife but he was not sure if he saw the deceased being chopped. He did not actually see the deceased chopped, but he saw people "chasing him, wanting to chop."

13. Dai had been put on probation for robbery and he was associated with Cha Chai. In his evidence he said at the playground he saw the deceased having his arm around Ah Foon, and over ten persons were surrounding the deceased. He himself did not see any blow land on the deceased, but he did identify the applicant as one of those who surrounded the applicant that night with a knife.

14. Dai was able to identify the applicant because they both lived in Lower Ngau Tau Kok Estate, he had sometimes played with the applicant there.

15. Mr Haynes, counsel for the applicant, advanced nine Grounds of Appeal. Briefly the Grounds are:

1. Having regard to the convictions of four persons for manslaughter in November 1991, the judge failed to consider whether or not he had a discretion to direct the Crown to proceed against the applicant on manslaughter only.

2. It was wrong for Lau Siu Fai to make a first time dock identification of the applicant in court in the absence of any prior identification parade.

3. This was a classic "fleeting glimpse" case and should have been withdrawn from the jury. The quality of the evidence was poor and called for "judicial intervention".

4. Neither eye witnesses (Chow or Dai) saw any blow land on the deceased whilst the applicant was near the deceased.

5. The prosecution failed to negative self-defence: there was nothing to negative the initial surrounding of the deceased was to rescue Ah Foon.

6. The direction on joint enterprise was prejudicial in that the judge used the expression "in it together" thereby raising that expression to the status of a direction in law.

16. The passage complained of reads:

"So these are just little examples to show you what is meant by joint enterprise. Question: 'Were they in it together or not?', because you cannot hold a person responsible for the actions of another person when they have not, either expressly or by implication, agreed to those acts."

7. The judge wrongly overruled the defence objection to the production of the "horrific photographs" of the deceased.

8. There was evidence to show that the "eye witnesses" had led the deceased and ten to 12 allies to the little park to take revenge. The trial judge failed to warn the jury that, if they concluded that the two eye witnesses had "guided" an attacking group, they were quasi-accomplices and it was dangerous to accept their evidence without corroboration.

9. The applicant was convicted of murder on evidence which (at its highest) put him as one of the group of knife holders surrounding a fighting man leading ten to 12 allies who seized Ah Foon by the neck.

17. We now deal with the grounds of appeal seriation.

Ground 1

18. The judge had a discretion whether to proceed on murder or manslaughter. It will be noted that the applicant's defence was that he was not involved and he had nothing to do with the killing. The prosecution's case was that he was involved as a member of a joint enterprise. In the circumstances, there seemed little alternative to proceed on an indictment for murder. The answer lies in Hui Chi Ming v. The Queen [1992] 1 AC 34, where Lord Lowry said (at 57D):

"Their Lordships recognise that it would be permissible to ask whether the Crown should have persisted in seeking a verdict of guilty of murder when a finding of manslaughter would have produced equality among the accused. There seem to be two answers. One is that, provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence."

19. Ground 1 fails.

Ground 2

20. Lau Siu Fai had known the applicant for a year and they had played football together. He identified the applicant as the one (whom he knew by the nickname Shek Chai) who attacked him on the day before the killing of the deceased.

21. There is nothing in Ground 2.

Ground 3

22. The two witnesses, Chow and Dai, identified the applicant as one of the group of men on the playground on 7 August 1990 when the deceased was killed. They had known the applicant before. The judge gave a Turnbull direction and directed the jury on the weaknesses of the identifying evidence of Chow and Dai. There is nothing in the contention that the judge should have withdrawn the case from the jury.

23. We reject Ground 3.

Ground 4

24. Whilst it is true that neither Chow nor Dai saw any blow land on the deceased. The judge correctly identified the issue in these terms:

"You can't hold this defendant responsible for unauthorised acts by one member of the group. The case here is that whatever may have happened outside the flats and witnessed by LO Sing, the primary attack when the victim was badly injured was there in the park when the defendant was one of the group. That is the issue. Now I think it would be very much easier if you were to listen for a moment to an example of joint enterprise in crime which is very different from the case in order to illustrate what is meant by this whole concept."

25. Chow said he had known the applicant for about two years as Shek Chai, and he saw him holding a beef knife on that fatal evening. Under cross-examination, Chow said:

" Q. Can you recognise the group who attacked LAU Siu-kong? And were they armed with weapons?

A. I recognise Ah Yu, Ah Foon, Ah Cheung, Ah Siu of Lo Luen had been knives in their hands, they surrounded LAU Siu-kong to chop him. But I am not sure whether they had chopped LAU Siu-kong to death. In addition, there were a few men holding knives and also chopped LAU Siu-kong.

Q. Can you recognise the opposite party who were present at the time of the offence?

A. I also saw Shek Chai, Ah Sing, Fei Yeung, Chu Yu Kee, Tai Huan, Cho B, Yin She Man, Fu Lo Tau holding things in their hands at time of offence.

Q. Can you depict them?

A. I do not know the full name of Shek Chai, aged about 24, 5'5", thin build, normal hair, he has got a pager ..... holding knife at time of offence."

26. He further said that whilst he did not see the knives being used to chop, he saw them being raised as if to chop.

27. Dai knew the applicant before and he identified the applicant at an identification parade as one of those who surrounded the deceased that night with a knife. He also knew the applicant as Shek Chai.

28. The judge gave an impeccable direction on joint enterprise. We find no merits in this Ground.

Ground 5

29. The defence raised the issue of self-defence. The evidence was that the deceased and his men were confronted at the playing field by a group of men armed with knives and pipes. There was no basis on which self-defence may be raised. It was a straightforward melee, not a case of self-defence.

30. We reject Ground 5.

Ground 6

31. The summing up must be read as a whole and in its proper context. What the judge said to the jury could not have been misunderstood.

32. This Ground too, fails.

Ground 7

33. Reliance was placed on The King v. Adams and Batt [1945] NZLR 224. The headnote reads:

" Where a photograph, although admissible in evidence was likely to horrify or prejudice a jury against an accused person, the learned Judge directed that it should not be shown to the jury unless it became necessary as evidence, to support the case for the Crown on some material issue, which appeared to be contested or doubtful."

34. The judge here gave perfectly good reasons for admitting the photographs. He said:

"I think in the 1990's the horrific effect of seeing serious injury to a person's body is considerably less than it used to be in days gone by, and I do not think that in the 1940's or even 1914, to name but two dates, that are referred to in well-known cases where the horrific effect of photographs was discussed, I do not think that the same values apply today where people are very much better educated about things of this kind, and are daily confronted on television and sometimes even in the newspapers the scenes of very considerable horror. Having said that, of course, if the emotional and prejudicial effect of putting photographs in front of a jury out weigh the probative effect, then it would be wrong to put them in front of a jury. But in this case where a group gang attack with many people wielding knives is alleged, I think it important, where the jury will have to consider not just grievous bodily harm as an intent but whether there were those who might have lacked the intent, that they see the number and ferocity of the blows with their own eyes and therefore I think this particular group of photographs comes into the category of more probative than prejudicial and I'm going to allow them to be admitted."

35. We too are of the view that the photographs were more probative than prejudicial.

36. There is nothing in the applicant's complaint.

Ground 8

37. The eye witnesses were not "quasi-accomplices". They could not have been accomplices to the deceased's killing: they were members of his gang. We dismiss Ground 8.

Ground 9

38. We repeat our observations when dealing with Ground 1 and Ground 6 and repeat that it was a case of joint enterprise. This Ground also fails.

39. For the foregoing reasons, we dismiss the application for leave to appeal against conviction.