HKSAR v. SUNG PAK LUN AND ANOTHER

CACC215/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2005

(ON APPEAL FROM HCCC 210 OF 2004)

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REASONS  FOR  JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

1. The applicants were charged with the murder of Mak Yat Sun.  Both were acquitted of that offence but convicted of manslaughter after a trial before V. Bokhary J and a jury.  The 1^st applicant was sentenced to 3 years and 10 months’ imprisonment.  The 2^nd applicant was sentenced to 3 years and 9 months’ imprisonment.  A 3^rd defendant at trial Li Kwong Hung pleaded guilty to manslaughter.  That plea was accepted and he was sentenced to 1 year and 9 months’ imprisonment.  Both applicants sought leave to appeal their convictions and sentences, the latter out of time.  At the hearing of the applications we dismissed both applications for leave to appeal conviction and allowed the applications regarding sentence.  We ordered both applicants’ sentences be set aside and substituted sentences which would allow their immediate release.  We now give our reasons.

Background

2. The deceased was a 41 year-old truck driver.  On 16 January 2004 he had driven his truck to a loading area at the Hong Kong International Distribution Centre in Kwai Chung.  There his truck while stationary was struck by another vehicle and sustained minor damage.  A person called Ah Sing, though not the driver of the other vehicle, went to the deceased’s vehicle and attempted to make some adjustment to it.  When the deceased saw this he commenced to argue with Ah Sing and they eventually came to blows.  The deceased was physically stronger than Ah Sing who sustained an injury to his face and called for help.

3. Some 10 or more of Ah Sing’s workmates who were present at the scene surrounded the deceased who entered into a brief but acrimonious conversation with them before members of the group, including the two applicants, commenced to assault him.

4. The deceased sustained a quite severe beating and, after the group had stopped attacking, fell to the ground.  He lost consciousness and subsequently the police and an ambulance were called to the scene.

5. The deceased was taken to hospital where unsuccessful attempts were made to save his life.  A subsequent autopsy revealed that the extra-cranial vertebral artery on the left side of the deceased’s neck had fatally ruptured.  The artery was at the time of the injury already weakened by an extensive atheromatous condition.

6. There was no issue at trial that both applicants had been part of the group which had assaulted the deceased.  Each had played a significant role in that assault.  What was in issue was whether there was sufficient evidence to allow the jury to properly conclude that the rupture to the deceased’s artery had occurred during the attack upon him by the applicants’ group rather than during the earlier fight with Ah Sing.

7. This had become the central issue at trial because the evidence of the government pathologist had been that although the common effect upon a person who sustained a ruptured vertebral artery as the deceased had done was an immediate collapse, in exceptional cases collapse might not occur for a period of up to two minutes.  That, on the evidence before the jury, would have allowed time for the group attack on the deceased to have taken place before he collapsed even if the injury had been sustained by him during the earlier fight with Ah Sing.  Submissions of no case to answer were made to this effect on behalf of both applicants but failed.

No case submission

8. The first ground of appeal relied upon by both applicants is that the judge had erred in leaving the case to the jury.  Mr Haynes for the 1^st applicant and Mr Dunn for the 2^nd applicant both argued that because of the uncontradicted evidence of the pathologist and the lack of any sufficient evidence proving that the deceased’s fatal injury was sustained during the attack involving the applicants rather than the earlier fight with Ah Sing, the judge should have removed the case from the jury.  They submitted that the inference that the fatal injury must have occurred during the subsequent assault upon the deceased by the applicants and their group was not the only reasonable inference able to be drawn from the available facts.

9. Mr Haynes and Mr Dunn in their submissions further contended that there was indeed evidence which supported the proposition that the injury had occurred during the fight with Ah Sing.  They pointed to the evidence of the pathologist that the likely cause of the rupture of the deceased’s left vertebral artery was a blow to the left rear side of his neck.  No witness was able to say they saw such a blow struck in either the fight with Ah Sing or during the later group attack.  Both counsel submitted that the evidence of witnesses who saw the group attack was that the group had attacked the face of the deceased rather than the back of his neck.

10. But we note in this regard that it is plain from the eye-witnesses’ evidence that the scene at the time of the group assault upon the deceased was “chaotic” and that witnesses said they saw not only the deceased’s face being struck by blows but his head also.  They also saw him being kneed in the head.  No particular weight in our view can be attached to the failure of any witness to remember seeing a blow strike the left rear side of the deceased’s neck.  The situation at the time was no doubt chaotic and the deceased was on occasion apparently struck by more than one person simultaneously.

11. Mr Haynes and Mr Dunn pointed also to evidence from various eye-witnesses to the subsequent group assault on the deceased that the deceased did not fight back during this assault and offered little resistance to those attacking him, suggesting that he had already sustained a serious injury.

12. It is true all witnesses agreed in their evidence that at no stage of the group assault on him did the deceased try to hit back.  One onlooker who said he saw the incident from the point in time when the deceased was first confronted by the group agreed that the deceased was “like a human punching bag” and “never even raised his hands to protect himself”.  But another witness described the deceased as using his fists to fend off blows and raising his fists to protect his head.  Another said the deceased bent low with his fists in front of his head to defend himself and later had his back to his vehicle with his fists raised to his forehead to defend himself.

13. We do not think any particular weight should be placed upon the deceased’s failure to fight back.  He was surrounded by a large group of people and faced multiple assailants.  He may well have simply protected himself.  The expert pathologist Dr Poon found multiple defensive injuries to the deceased’s arms.

14. On this same point Mr Saw SC for the respondent cogently submitted that the deceased was observed by eye-witnesses to have been lucid and argumentative with the applicants’ group following his fight with Ah Sing and before the subsequent assault.  He particularly pointed to the evidence of five witnesses to the assault to the effect that the deceased, when confronted by the applicants’ group had been apparently uninjured and defiant when questioned by them as to why he had assaulted Ah Sing.

15. Quite importantly so far as this first ground is concerned is that Dr Poon, while agreeing that a person with a fatal injury such as the deceased suffered may have been able to withstand a physical collapse in exceptional circumstances for up to two minutes, then went on to describe such a victim’s condition between the point of time when the artery ruptured and collapse ensued as being observably “abnormal”, perhaps evidenced by stumbling, a loss of coordination and the appearance of confusion.  As Mr Saw submits that was plainly not the appearance of the deceased at the time of his confrontation with the applicants’ group.

16. The judge in her ruling on the applicants’ submissions at the end of the prosecution case said:

“In my view, there is evidence on which the jury could properly find that the fatal blow was struck during that (group) attack rather than during the earlier encounter between the deceased and the man nicknamed ‘Ah Sing’.  I take that view for these reasons.  The pathologist accepted that in exceptional cases the victim of a ruptured artery like this one could have lasted about one to two minutes before collapsing.  But, he said, collapse would probably be almost immediate.  And even if immediate collapse did not ensue, the victim’s condition between rupture and collapse would be abnormal.  ‘Stumbling’ is one of the words which the pathologist used to describe such condition.

The evidence suggests that Ah Sing got by far the worse of the physical encounter between him and the deceased.  Indeed the evidence suggests that Ah Sing did not land any blow on the deceased.  But even if he had, the evidence as to the deceased’s condition after his encounter with Ah Sing is that he, i.e., the deceased could stand and was defiant and swearing when surrounded by a number of angry men.  There is no evidence of him stumbling or of his condition being abnormal in any way.  Indeed the evidence is that he was able to absorb quite a few blows before collapsing.

It is open to defence counsel to say what they like to the jury on the question of causation.  But in my view, there is evidence on which the jury would be entitled to feel sure that the deceased was killed in the course of a joint enterprise to which both accused were party.”

It is quite plain that while there was some evidence capable of supporting the defence assertion that the fatal injury may have been occasioned during the fight with Ah Sing, there was significant evidence that the deceased was uninjured at the commencement of his confrontation with the group.  The judge’s refusal to remove the case from the jury cannot be criticized and the first ground must fail.

The judge’s directions

17. Both applicants complained about various directions given to the jury by the judge.

18. Firstly, Mr Haynes and Mr Dunn submitted that the direction on inferences given by the judge was insufficient.  She directed the jury in this way :

“You cannot drawn an inference against an accused unless it is based on facts of which you are sure and you are sure that it is the only reasonable inference.  If an inference against an accused is based on facts of which you are sure and you are sure that it is the only reasonable inference, then you may draw that inference against the accused.”

Mr Haynes and Mr Dunn together argued that the judge omitted to direct the jury that in addition to being the only reasonable inference available from the proven facts any inference drawn against the applicants had to be “compelling”.  The authority cited for this proposition was Kwan Ping Bong v. R. [1979] HKLR 1 where Lord Diplock said :

“The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling — one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

But in saying that Lord Diplock was not imposing a verbal straitjacket upon judges in directing juries on the drawing of inferences.  As Sir Anthony Mason NPJ said in referring to Lord Diplock’s statement in Tang Kwok Wah v. HKSAR (2002) 5 HKCFAR 209 at 227 :

“The correctness of this statement is incontrovertible.  But it goes to the standard of proof in relation to the drawing of an inference of a fact constituting an essential element in the offence charged, not to what the law requires by way of instructions to the jury in a case in which the prosecution depends upon circumstantial evidence or the drawing of inferences.”

19. It is difficult to imagine circumstances where by drawing the only reasonable inference against an accused a jury would fall below the criminal standard of proof.  Such circumstances certainly do not exist in the present case where the only inference in issue was whether the fatal blow was struck during the group attack.  If there were any possibility that the blow was struck during the earlier fight with Ah Sing then any inference that the blow was struck during the subsequent group attack on the deceased quite simply could not have been the only reasonable inference.  There was no danger that the jury would fall below the proper standard of proof when acting on the judge’s direction.

20. In any event at a later stage of her summing up the judge made clear to the jury that they could not draw the inference that the fatal blow was struck during the group attack if they had a reasonable doubt about that.  She said :

“The prosecution says that the only reasonable inference is that the fatal blow, that is the one to the nape of the deceased’s neck, was struck during the second physical encounter, and that you should feel sure about that.

The defence says that it is not the only reasonable inference that the fatal blow was struck during the second physical encounter.  They say that you should feel a reasonable doubt as to whether the fatal blow was struck during the first or struck during the second physical encounter.  If you feel a reasonable doubt as to that, then the prosecution cannot prove its case on causation of death, and you could not convict either accused of murder or manslaughter, …”  (emphasis added)

In our judgment it is quite plain that the judge, in the circumstances of this case, properly directed the jury on the drawing of inferences and this complaint must also fail.

21. Mr Haynes further argued that the judge, having instructed the jury to “proceed on the basis that the pathologist is saying that the fatal blow was to the nape of the deceased’s neck”, then left the alternative scenario of a blow elsewhere to the head of the deceased as also being capable of causing the fatal injury before the jury.  The simple answer to that proposition is that she did not.   The judge referred to Dr Poon’s evidence that a blow to the head was capable of causing the fatal injury only as a preamble to her instructing the jury to proceed on the basis that Dr Poon had said that the fatal blow was to the back of the deceased’s neck.

22. To put the judge’s remarks in context, she said when summarizing Dr Poon’s evidence :

“So the deceased was killed by a blow which caused a sudden movement of his neck which sudden movement stretched the vertebral artery to the point that it was ruptured — in other words, torn.  A blow to the head, even to the front of the head, can cause a sudden movement of the head that ruptures the vertebral artery.  But in this case, members of the jury, you should proceed on the basis that the Pathologist is saying that the fatal blow was to the nape of the deceased’s neck.”

23. The judge’s direction to the jury in this regard was one really based on commonsense.  Dr Poon’s evidence had been to the effect that he had found extensive and deep bruising to the left rear of the deceased’s neck extending down to the location of the rupture to the vertebral artery.  That bruising, he said, was occasioned by blunt force.  In any event by instructing the jury to effectively disregard that aspect of Dr Poon’s evidence allowing for other blows to the head having caused the fatal injury and to regard Dr Poon’s evidence as restricting the fatal blow to the nape of the neck the judge’s directions could, as Mr Saw argued, only have benefited the applicants.  This complaint cannot succeed.

24. Mr Haynes made an ancillary point that the instruction given by the judge as to how to regard Dr Poon’s evidence was in contradiction of her earlier general direction that in approaching the evidence of an expert such as Dr Poon : “It is for you to decide whose evidence and whose opinions you accept if any.”  It may well be that there was some inherent contradiction in approach in this regard, but as we have said any such contradiction was not to the disadvantage of the applicants.

25. Mr Haynes further argued, somewhat to the contrary of the defence case at trial which had been that the only fatal blow possible was the one to the back of the deceased’s neck, that as there was evidence that the first blow in the assault upon the deceased was struck by a person called Tam to the face of the deceased, and it being as possible that blow caused the fatal injury as any other blow, the judge should have specifically directed the jury that they had to be sure that the applicants were in a joint enterprise with Tam at that early stage.

26. We do not agree.  The direction the judge gave to the jury on joint enterprise was as follows :

“Joint enterprise means the conduct of two or more persons who take part together in a course of criminal conduct.  Suppose two or more persons, acting together, unlawfully attack a victim.  Suppose the victim is beaten by the attackers so that he receives a number of blows from which he sustains a number of injuries.  Suppose each and every attacker foresaw that the victim would receive those blows and sustain those injuries.  Whenever I talk about anyone being party to a joint enterprise, I will mean being a party to it with such foresight.  Bear that in mind throughout.  Suppose the victim dies as a result of one or more injuries, and no one can say which attacker or attackers struck the fatal blow or blows.  If any accused was one of the attackers who was party to the joint enterprise, it does not matter which attacker or attackers struck the fatal blow or blows.  Each and every attacker — in other words, each and every participant in the joint enterprise — is criminally liable for all the injuries, including the fatal injury or injuries, sustained by the victim.  That is the law of joint enterprise.”

That was a complete and proper direction.  The judge then went on to deal with the circumstances of this case where the attack, perhaps initiated by Tam, commenced shortly after a verbal confrontation with the deceased.  She said this :

“Sometimes a joint enterprise involves a good deal of planning beforehand.  At other times, a situation develops in which, without planning beforehand, persons come quite quickly to act in joint enterprise.  This second type of situation is in effect the sort of situation which the prosecution is putting forward in the present case.  So the defence is correct in saying in effect that there was no planning beforehand in the present case.  You will bear that in mind.  At the same time you will bear in mind that there can be situations in which, without planning beforehand, persons come quite quickly to act in joint enterprise, which is in effect what the prosecution says happened in this case.”

The jury can have been under no illusion that they had to consider whether a joint enterprise of which the applicants were members had formed in that relatively brief period of time before the attack commenced.  The judge’s directions were appropriate in that regard.  It was not necessary for her to go further and emphasise that the jury had to be satisfied the joint enterprise had formed before Tam struck any blow.

27. Mr Dunn advanced an argument that the judge should have directed the jury that they had to be satisfied that the fatal blow was struck by one or other of the applicants.  We disagree.  The prosecution case was clearly from the outset that the applicants were involved in a joint enterprise to assault the deceased.  Such a direction in the circumstances would have been entirely unwarranted.

28. Mr Dunn also complained that after summarizing those matters upon which the prosecution relied to found the inference that the fatal blow was struck during the group assault on the deceased, the judge was wrong to say that if the jury was satisfied as to those facts they were “entitled” to infer the fatal blow was struck during the group assault.  He asserts that the use of the word “entitled” would suggest to the jury that they should in fact draw such an inference.  We disagree.  The judge in using that word was plainly directing the jury that if they were satisfied that the prosecution had proven the facts they relied upon then it was open to the jury to draw the inference that the fatal blow was struck during the group fight.  In the context of the summing up as a whole it must have been obvious to the jury that it was entirely a matter for them whether they did so.

29. The final matter advanced was this.  The 3^rd defendant at trial was Li Kwong Hung.  He, as we have said pleaded guilty to manslaughter.  That plea was accepted and he was sentenced to 1 year 9 months’ imprisonment at the end of the trial.

30. During the trial he gave evidence for the prosecution.  Mr Haynes complained that at no stage in her summing up did the judge direct the jury that the guilty plea of Li, of which they were informed, must not prejudice the position of the two applicants.

31. The judge had said this about Li’s plea :

“The fact that he has pleaded guilty to manslaughter does not affect your decision as to whether you should convict either of the accused whom you are trying of any offence and, if so, of what offence.  PW5’s guilty plea does not lessen the prosecution’s duty to prove its case against each accused beyond reasonable doubt.”

Mr Haynes submitted that direction did not go far enough and that the judge should have expressly told the jury that they should not take any account of Li’s plea in considering the case against each applicant.

32. It may well be that an express direction to the jury to wholly ignore the fact of Li’s plea of guilty when they considered the case of each applicant would have been preferable, but we think the form of words used by the judge was nevertheless adequate.  She instructed the jury that Li’s plea of guilty to manslaughter should not affect their decision regarding the two applicants.

33. In our judgment that direction was sufficient to bring home to the jury that Li’s plea of guilty to manslaughter had no bearing on the cases of the two applicants.

34. For the above reasons the applications regarding conviction were dismissed.

Sentence

35. We turn now to the applications for leave to appeal against sentence out of time.

36. The applicants were sentenced on the basis that the jury returned verdicts of “unlawful act” manslaughter.  As the judge said that was the only realistic basis for the jury’s verdict.  Li had pleaded guilty on that basis.

37. The judge, though she was not required to do so, stated that she would adopt a starting point of 4 years’ imprisonment for each applicant.  Each of the applicants received a discount for what was said to have been their previous good character.  The 2^nd applicant received a slightly greater discount because of his wholly clear record and positive good character reflected in his receipt some years before of a good citizen’s award, whereas the 1^st applicant had one previous minor offence.  Li, the other defendant at trial who had pleaded guilty to manslaughter received a sentence which was substantially reduced because of his plea of guilty and his assistance to the prosecution.

38. Mr Haynes argued that the sentence imposed on the 1^st applicant was manifestly excessive.  He asserted that the judge placed insufficient weight upon the significant factors in mitigation advanced on behalf of the applicant.  Those factors were, firstly, the provocation brought about by the deceased punching Ah Sing and, secondly, the fact that the deceased’s death was brought about at least in part by his left vertebral artery being in a weakened condition due to its atheromatous state.

39. But the judge took everything advanced in mitigation into account.  She referred also to the nature of the assault upon the deceased.  That assault was severe and prolonged.  Significant injuries were sustained by the deceased to his face and head independently of the damage caused to his left vertebral artery.  It is true the attack would not have resulted in the deceased’s death had it not been for the susceptibility of his artery to injury, but in the circumstances of the attack, where a group of ten persons or so surrounded a single victim who was then beaten savagely by some of their number so that his death in fact resulted, we cannot say that the sentence imposed on the 1^st applicant was manifestly excessive.

40. However it was brought to our attention that at a bail application by the 1^st applicant heard on 24 May of this year, government counsel did not oppose the application on the basis that the respondent had a “major hurdle” to overcome in sustaining the conviction.  That hurdle was expressed to be that there were no apparent facts from which an inference that the fatal injury had occurred during the group attack could be drawn.  Though what counsel said in this regard was not an express concession we accept — and one of our number heard the bail application — that the tenor of the stance taken by counsel for the respondent appearing at that time was materially different from that taken, correctly as we have held, by counsel for the respondent who appeared on these applications; and we accepted the argument advanced by Mr Dunn and adopted by Mr Haynes that the forthright statement by counsel at the time of the bail application may have engendered substantial hope in the minds of the applicants that their appeals would succeed.  For that reason and taking into account both applicants had almost completed their sentences by the time of the hearing we ordered that the applications concerning sentences be allowed and the sentence of each applicant be set aside and be substituted with a sentence allowing his immediate release.