HKSAR v. Chiu Siu Tung and Another

IN THE COURT OF APPEAL

1997, No.29
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. CHIU Siu-tung, the applicant seeks leave to appeal against his conviction on one offence of murder, contrary to Common Law and two offences of wounding with intent, contrary to s.17 (a) of the Offences Against the Person Ordinance, Cap.212. He pleaded not guilty to all three charges and was convicted after trial before Leong J. on 18th December 1996. The sole ground advanced in the appeal is that the verdict of the jury is unsafe and unsatisfactory because the conviction of the applicant was inconsistent with the acquittal of his co-accused.

2. The particulars of the murder offence stated:

"Chiu Siu-tung and Li Wing-fai, on the 10th day of November, 1991 at the Cheers Bar, Chatham Court, Tsim Sha Tsui, Kowloon, in Hong Kong, together with other persons, murdered Lee Sai-ying."

3. The particulars of the first wounding offence stated:

"Chiu Siu-tung and Li Wing-fai, on the 10th day of November, 1991 at the Cheers Bar, Chatham Court, Tsim Sha Tsui, Kowloon, in Hong Kong, together with other persons, unlawfully and maliciously wounded Lee Sai-kit with intent to do him grievous bodily harm."

4. The particulars of the second wounding offence stated:

"Chiu Siu-tung and Li Wing-fai, on the 10th day of November, 1991 at the Cheers Bar, Chatham Court, Tsim Sha Tsui, Kowloon, in Hong Kong, together with other persons, unlawfully and maliciously wounded Lee Sai-tak with intent to do him grievous bodily harm."

5. The three victims were brothers employed at the Cheers Bar and on the evening of 9th November 1991, a female staff member of the bar, known as Tsui Yee, had an altercation with some of the customers and was assaulted by one or more of them. After the bar closed the three victims were sitting with others in a car outside the bar preparing to leave and Tsui Yee was seen to return with a group of men who began assaulting those who were leaving the bar. The victims sought to intervene and were themselves attacked with knives. Lee Sai-ying was stabbed and succumbed to his wounds. The two surviving Lee brothers gave evidence identifying the applicant and Li Wing-fai, D2, as two of the attackers. A Mr. Ip Pui-leung ("Ip") gave evidence identifying only the applicant as an attacker.

6. The evidence against the applicant and that against D2 was very different. In particular the evidence from Ip implicated him but did not implicate D2.

7. Neither the applicant nor D2 gave evidence but the defence case for each, as it was put by counsel, was also very different. It was the case of D2 that he was never at the scene at any time whereas it was the applicant's case that he had been at the scene sometime earlier in the day but was not there at the time of the attack. It was, further, not in dispute that the motor vehicle which conveyed Tsui Yee back to the scene immediately before the attack which had carried some of the assailants was owned by the applicant.

8. In R. v. Durante [1972] 1 WLR 1612, Edmund Davies L.J. said at 1617:

"In Reg. v. Hunt [1968] 2 Q.B. 433, Lord Parker C.J., at p.438, cited from Reg. v. Stone (unreported), December 13, 1954, and quoted what he described as a useful passage from the judgment of Devlin J. in regard to the approach that the court should adopt in cases of inconsistent verdicts. It reads:

'When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.'

We do not know whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J. that the burden is on the defendant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that proposition."

9. In our view there was ample evidence for a jury applying its mind properly to the facts to have arrived at differing conclusions as to the guilt of the applicant and of D2. There was nothing in any way unreasonable about those decisions. The applicant has not begun to discharge the burden upon him to establish that they were so inconsistent as to demand interference by this court.

10. The application is dismissed.

11. The 2nd applicant, who was in person, applies to appeal against the refusal by the judge below to grant him costs. As we have no power to entertain an appeal against such a refusal, his application must be dismissed.