R. v. CHIU SIU TUNG

IN THE COURT OF APPEAL

1995, No. 548
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his three convictions: one for murder and two for wounding with intent contrary to section 17 of the Offences against the Person Ordinance Cap. 212.

2. All of the offences arise out of the same incident which occurred in the early morning of 10 November 1991 outside the Cheers Bar at Chatham Court Tsim Sha Tsui. The victims of the offences were three brothers.

3. There was evidence that earlier in the morning at about 3 a.m. a woman called Tsui Yee and a man called Ma Chung Chun were at the Cheers Bar drinking alcoholic beverages. At about 5 a.m. after a considerable amount of alcohol had been consumed there was an argument. This was between Mr Ma and Ms Tsui on the one side and a man called Yuen Yi Chi on the other side. During the cause of the argument Mr Yuen punched Ms Tsui in the face causing her nose to bleed. Mr Lee Sai Kit one of the victims of the wounding charges and Mr Ip Pui Leung were also present and they blamed Ms Tsui for causing the trouble and suggested that she and Mr Ma should leave as they were intoxicated.

4. Shortly after this Ms Tsui used the telephone and then left with Mr Ma. Mr Ma subsequently returned to the Bar.

5. The three Lee brothers with their wives and girlfriend left the Bar at 7 a.m. when it closed. They were waiting in a car while Lee Sai Kit's wife Fan Yuk Yin was locking up the premises.

6. The two surviving brothers, Mr Ip, Ms Wong Kai Ling who was Lee Sai Tak's girlfriend and a Mr Tang Bun a pedestrian in the vicinity at the time all gave varying versions as to what happened next.

7. A white Honda motor car registration No. EX 6355 drove up and parked opposite. Ms Tsui and some men got out of the car and approached the car which the Lee party were sitting in. Ms Tsui said "these are the ones". The men produced beef knives and then assaulted the Lee brothers. Wong J described in detail the evidence given by all the witnesses. At the conclusion of the incident Ms Tsui and the men left in the Honda car. Lee Sai Ying died as a result of the injuries he sustained in the attack. The other two Lee brothers suffered very serious injuries which were the subject of the second and third counts.

8. Approximately 45 minutes later the applicant left Hong Kong by ferry to go to Macau where he remained until November 1994 when he was arrested while attempting to cross the border from Macau to China.

9. The two surviving Lee brothers identified the applicant in a photograph they were shown in April 1994 and were able to say that he had participated in the assault.

10. Both these brothers and Mr Ip attended an identification parade on 21 November 1994 and identified the applicant as one of the assailants.

11. The applicant did give evidence of his involvement in the incident. He said that he received a telephone call from Ms Tsui who was his co-habitant in the early hours of the morning and she claimed that she had been assaulted. At that time he was at a sauna establishment with one of his friends Lee Wing Fai. She was unable to tell him where she was although she indicated she was in the vicinity of Chatham Court. He suggested that she should return home and they could then decide what should be done. She called again at 6 a.m. but this call was inconclusive. He then tried to call her at their residence but no one answered the phone. He was worried about her and decided to try and find her. He went to Chatham Court and saw her with a group of men. He approached and asked her to leave with him. She appeared to be upset that he had not been more forthcoming with assistance and refused to accompany him. Eight or nine men then approached the group and started hitting them including Ms Tsui with knives and he succeeded in dragging her and his friend Mr Lee away to his car and making good their escape. Ms Tsui had then said that she thought that as the group included triads it would be prudent for him to leave the territory so as to avoid any revenge attack. He accepted this advice and that was the reason why he had left the territory when he did.

12. The second perfected ground of appeal is that the judge's direction as to the evidence of flight was wrong, confusing and prejudicial.

13. Although the issue of flight had been ventilated at some length during the course of the applicant's cross-examination Wong J did not initially give any directions on this subject. At the conclusion of the summing-up prosecuting counsel requested that he be permitted to make a submission to the judge in the absence of the jury. This request was granted.

14. Having regard to the helpful submissions made before us by Mr McCoy it is desirable that the transcript of the exchange which took place and the short direction which was given by the judge should be reproduced.

"MR LUCAS: Thank you, my Lord.

I would invite your Lordship to leave to the jury's consideration on the question of identification that in the event they did not accept the accused's account of why he left Hong Kong at 8.01a.m., they might nonetheless use that as supportive material for the identification of the accused as one of the principal attackers involved in the assaults upon the Lee brothers. If the jury were to accept the accused's account of what took place that morning, they would acquit him. If they reject his account, the evidence is that: within - if we look at the report which was at 7.25 - certainly in the order of 40 minutes later he is leaving Hong Kong, abandoning, as I put to him in my cross-examination, his wife, his car, his job, his flat, his personal belongings, all of those things, would be indicative of consciousness of guilt evidenced by his flight from Hong Kong. That is the additional matter.

COURT: I did mention about his leaving Hong Kong for Macau, perhaps...

MR LUCAS: My Lord, I would ask your Lordship to give it emphasis in connection with this issue of identification. That is, although it is not corroborative, it is perhaps material if they are reminded not to accept the accused's account which is supportive of the identification.

COURT: Mr Walters?

MR WALTERS: Well, I think it is a bit dangerous to say that evidence of flight is supportive of an identification. The example in Archbold, I think, which say as to what is supportive usually have the person being spotted going to a particular place that have some connection with it. Very careful direction would have to be ...

COURT: I'll simply tell the jury that the accused left Hong Kong for Macau 40 minutes later.

MR WALTERS: Yes, I think that will be the simplest way.

MR. LUCAS: My Lord, your Lordship will be giving -- making that observation to the jury as we're in a vacuum. It is the significance of that departure which the Crown will rely upon.

COURT: Then of course I'll ask the jury to consider why he left in a hurry.

MR LUCAS: As your Lordship please. That's the only matter I wish to raise.

COURT: Without being any more specific than that.

MR. LUCAS: As your Lordship pleases.

10.50a.m. Jury return to court-room

COURT: Members of the jury, I have just been reminded by counsel to bring to your attention one piece of evidence, and that is, you'll recall that the accused left Hong Kong for Macau about 45 minutes later - within an hour after the incident. You are entitled to take that evidence into consideration why did he leave in such a hurry. Of course he told you that he was acting on the advice of Tsui Yee because of fear of retaliation or revenge by the triads. On the other hand you may also consider whether that was realisation of what he did earlier. That is of course a matter for you.

Yes, I think that is all I have to say to you. May the Usher be sworn now?"

15. It must be said immediately that it was most unfortunate that the judge did not agree a form of wording with both counsel. Had this been done the problems which have arisen in this case might have been avoided.

16. As the matter was eventually left by the learned judge it is quite possible that the jury might have attached undue weight to the applicant's flight and have failed to consider the evidence in a fair way.

17. The problem is compounded by the fact that when earlier in the summing-up Wong J gave directions to the jury on the subject of inferences that they would be entitled to draw he did not direct them that they would only be entitled to draw adverse inferences from primary evidence if that was the only possible inference which could be drawn in all the circumstances.

18. The jury had before them on the one hand the applicant's explanation that the reason for his flight was a fear of retaliation by the men involved in the assault incident and on the other that the reason for his flight was an attempt to evade the legal consequences of his own acts. In other words that it was as a result of his consciousness of his own guilt.

19. As the judge left the matter to the jury they simply had to decide which version of the evidence they should accept. This was particularly unfair as the applicant had been subjected to a vigorous cross-examination on this subject and it had been put to him that it was extraordinary that he should have been prepared to give up the life he was leading in Hong Kong and all his possessions because he was seeking to avoid some form of revenge attack.

20. On the authority of R. v. Melrose (1987) 30 A Crim R. 322 and R. v. Yu Chun Man Cr. App 435 of 1993 (unreported) it was necessary for the judge to give directions which would make it clear to the jury that before they would be entitled to rely on the applicant's flight from Hong Kong as part of the prosecution case against him they must be satisfied beyond a reasonable doubt that this was the sole reason for his leaving and that his flight was a deliberate and conscious attempt to avoid a true conviction in this case.

21. The jury had to be sure of his consciousness of guilt before they were entitled to hold his departure from Hong Kong against him.

22. It is evident from the directions which were given by the judge that they fell far short of what was required.

23. There was also confusion concerning the purpose for this evidence. The applicant on his own evidence accepted that he had been present at the time of the incident and accordingly it was inappropriate that the evidence of flight would be supportive of the identification evidence.

24. We are satisfied that there was a material misdirection concerning the applicant's flight from Hong Kong. The conviction is accordingly unsafe and unsatisfactory. As we have come to this conclusion it is not necessary for us to comment upon the other grounds of appeal which were presented to the court.

25. We treat this application as the substantive appeal. We allow the appeal and quash the convictions.