SO TAI-KI v. R.

IN THE COURT OF APPEAL

1993, No 220
(Criminal)

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J U D G M E N T

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Nazareth, J.A.:

1. On 21st April 1993 the applicant, So Tai-ki, was convicted by Duffy J. sitting with a jury of three offences: the first of manslaughter where the charge was of murdering one Li Wang-yuen, and the second and the third of wounding two other persons with intent. He was sentenced to imprisonment for concurrent terms of 8 years, 4 years and 4 years respectively in respect of those offences. He now seeks leave to appeal against conviction.

2. The charges arose out of a violent incident on 5th March 1992, sometime after 3 a.m. in the morning in a car park adjoining the Gerlin Karaoke Lounge in Tai Po in the New Territories. The deceased Li Wang-yuen received serious injuries from which he died and two members of his group also received injuries which were the subject of the second and third charges.

3. The incident was preceded by a sort of exchange in the karaoke lounge between the deceased and the applicants. When the deceased and his party left and were leaving the car park they were attacked by a large group of men armed with what appeared to be rods, poles or billiard cues. There was evidence from the members of the deceased's group that the applicant was one of two men who attacked the deceased. The applicant in his written notice of application for leave, which was prepared by himself personally, listed three grounds of appeal. He has before us this morning added others. His first written ground of appeal was this:

"(1) During the trial, the prosecution abruptly called an additional witness without informing the defence in advance. They simply ignored the defence counsel's need of time to study the information about that additional witness. Thus, the defendant had been treated unfairly."

4. There is nothing before us showing that defence counsel was denied time to deal with any evidence of this sort, or more to the point, that the defence was prejudiced or indeed that counsel for the applicant complained.

5. His second written ground is that:

"(2) As regards the course of events of this case, there were a lot of doubts in the evidence of the prosecution witnesses, which were self-contradictory and different from the statements they gave at the police station earlier. In delivering judgment, the trial judge did not justly bring up this point. When he gave directions to the jury, he did not tell them that in criminal proceedings, the benefit of doubts went to the defendant. Thus, the defendants had been convicted unfairly."

6. It is not entirely clear what doubts or self-contradictions the applicant has in mind other than those to which I shall come to and to which he specifically refers.

7. As to the contradictions or differences between the prosecution witnesses' statements at the police station and the evidence they gave at the trial, the judge dealt with those matters at pp.46-50 of the transcript. He referred to them individually, recalling that counsel for the applicant raised them and having identified them he drew the attention of the jury to the necessity of exercising care. We are satisfied therefore there is nothing in this specific complaint of the applicant.

8. As to the complaint that the trial judge did not tell the jury that they ought to give the benefit of doubt to the applicant, the judge specifically directed the jury on this matter in the manner recorded at p.3 of the transcript. Having pointed out that it was for the prosecution to establish guilt beyond reasonable doubt, he went on to say that:

"If, having considered all of the evidence, you are left with a reasonable doubt about the defendant's guilt of the charges, or one or two of them, then you must give him the benefit of the doubt and acquit him."

We therefore find no substance in his second written ground.

9. The applicant's third written ground of appeal is that:

"(3) Throughout the trial, the prosecution solely relied on the evidence of the witnesses, most of whom being hostile witnesses. However, the judge did not bring up and explain this point to the jury. Convicting me in such circumstances was really unfair to me."

10. It is necessary, first of all, to point out that not all the witnesses were hostile or who could be said in a sense to belong to the deceased's group. There was an independent witness, a woman who viewed the incident from one of the upper floors of an adjoining building, and whose evidence tended to support that of the other prosecution witnesses who did belong to the deceased's group. That said, it is none the less quite plain from the summing-up that the judge did not fail to bring up and explain the point to the jury. On the contrary he specifically warned them of the dangers attached to such evidence. He pointed out at pp.44 and 45 that these were the deceased's friends and the jury had to be careful about their account of the events in the car park. He also went on to specifically point out:

"... that only the deceased's friends have said that the defendant was one of two men who attacked the deceased. You will probably think it necessary to be careful before accepting their evidence on that matter."

11. No more needs be said about that third written ground. There is plainly no substance in it.

12. We turn then to the additional grounds which the applicant raised before us this morning by means of a document written in English. He refers first of all to certain aspects of he prosecution evidence which might have tended to weaken it: That he had his back to one of the prosecution witnesses who gave evidence, that the colour of his jacket might have been different, that the lights were dim, that the incident occurred at very late hours of the night and that there had been an incident much earlier which might have prompted the prosecution witnesses to take revenge upon him.

13. We are satisfied that in his summing-up the judge drew attention to dangers of this sort in accepting the prosecution witnesses' evidence. For instance, as recorded at p.38 of the transcript, he referred to the events happening at bewildering speed, thus enabling each witness to catch only a part of the action. He asked the jury to keep in mind that sort of matter when assessing the reliability and credibility of the witnesses.

14. Next, this morning the applicant raised aspects and implications of forensic evidence as to the absence on his clothing of blood stains or fibres that had come from the deceased. We are satisfied, looking at the summing-up as a whole, that the jury could not have been unaware of these matters. Furthermore, the absence of such blood stains and fibres on the applicant's clothing, and likewise the presence of such blood stains and fibres on the second defendant's clothing, do not preclude the guilt of the applicant being established by the other evidence.

15. Finally, the applicant complains of the fact that the jury in the initial stages, at any rate, found it difficult to come to a verdict on the charge of murder, and were divided by a proportion of 4:3. It is quite true that was the initial position and that the judge, as he was entitled to do, required the jury to give further consideration to the matter. This the jury did and they came to the unanimous verdict of guilty of manslaughter. That they were entitled to do. We find nothing wrong in that which would invalidate the verdict.

16. For the reasons we have endeavoured to give we find no merit in the applicant's grounds, nor any other reason to interfere with the convictions. The application for leave is refused.