THE QUEEN v. CHAN CHUN-MING (D.1) AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Roberts, C.J. -

Preliminary

1. CHAN Chun-ming (D.1), LAU Hing-kwok (D.2) and LAM Chun-kit (D.3) were jointly charged with the murder of WONG Yiu-ting on 4th November, 1983 at Shamshuipo, together with other persons unknown.

2. The admissibility of confessions made by all three defendants, upon which statements the Crown relied heavily, was contested on the voir dire, in the absence of the jury.

3. At the conclusion of this, the judge ruled that the statements made by D.2 were not admissible. The Crown offered no further evidence against him and he was acquitted on the direction of the judge.

4. D.1 and D.3 were convicted of murder and, in view of their ages, sentenced to be detained during Her Majesty's pleasure.

Outline of facts

5. About midnight on 29th October, 1983, two young girls, aged 15 and 14, were visiting a friend who lived at Yu Chau Street in Shamshuipo. Their route took them past Yen Chow Street, where a group of noisy youths, who were gambling on the roof of a shop in Yen Chow Street, spoke to them shouting "Pretty girls, where are you going?"

6. The girls ignored them and continued on their way to their friend's flat where the locked iron grille was opened, after a short interval, during which they had phoned for him to come and let them in, by WONG Yiu-ting ("Wong"), the deceased.

7. Before Wong opened the door for the girls, members of the group of youths had followed the girls and spoken to them, inviting them to go and have a night snack with them.

8. Wong asked the girls if they knew the youths and, when they said they did not, he closed the gate and prepared to go upstairs. The young men continued to tease the girls, at which Wong said to them "Young brats, don't tease any more otherwise you will be beater up;" whereupon one of the youths said to Wong "If you're tough enough come out and have a fight."

9. This taunt made Wong very angry. He went back to the gate and prepared to go outside. The girls attempted to restrain him, but he slipped from their grasp, opened the gate and went out of the premises with the two girls behind him.

10. Their evidence was that, as soon as he went out, the youths, of whom there seem to have been about seven or eight, backed away, some of them going to the other side of the road to look for weapons. The girls' evidence was to the effect that four of them were armed, one of them with a waterpipe, one with a plank with three nails in it and the others with rods.

11. The group then fell upon the deceased, delivering a number of blows, as a result of which Wong fell to the ground unconscious. He was taken to hospital, where he died five days' later as a result of a fractured skull and bleeding, inside the brain. The pathologist identified seven separate wounds on the head and bruising on the left arm, wrist and hand. It was not disputed that Wong died as a result of the wounds which he suffered in the attack made upon him in the early hours of 30th October. What was in dispute was the identity of the attackers.

12. It was suggested in cross-examination to the two girls that, when Wong left the staircase and advanced towards the youths, he was carrying an iron pipe. The girls denied this, though the statements made by both D.1 and D.3 asserted that Wong was armed with an iron waterpipe, which fell from his grasp during the affray.

13. The identification of the defendants by the girls had unsatisfactory features, to which the judge alluded, thus obliging the Crown to lean heavily on admissions made by the defendants to the police. Neither defendant gave evidence (save on the voir dire) nor called witnesses.

Grounds of Appeal

14. Counsel for the appellants put forward a number of grounds of appeal, of which two seem to us to be of sufficient substance to require consideration.

15. The first ground was that the judge had failed to direct the jury adequately on the issue of common intention The principal direction as to this was as follows -

"Now, the Crown does not allege here that either of the accused directly and individually killed the deceased WONG Yiu-ting. The law provides that, if a group of men gather together with a common intent to commit a crime, the act of each and any one of that group in committing that crime is treated as the act of each of them. Thus, if a group of people intended to kill someone, or intended to cause him serious bodily injury, and all the persons comprising that group who were present at the same time took some part in those actions either by actually inflicting the blows themselves or by encouraging others of that group to inflict blows on the victim, or they were standing by ready to assist the others in the group, if necessary, to carry out the common intent, then each and every one of the members of that group would be guilty of murder if death ensued as a result of some one of those acts."

16. Counsel took no issue with this direction, so far as it went. However, he argued that the judge should have gone further and directed the jury that, if they were satisfied that the common intent of the group of attackers was to cause injury short of serious bodily injury, they should consider the alternative verdict of manslaughter.

17. He argued that this omission was compounded by the following passage, which appears later in the summing-up -

"If you give full weight to those statements individually and separately, then it would constitute complete confessions of the accused's participation in the events of that evening which led to the death of the deceased and that their intention and the intention of the group of which they formed part was, at the very least, to cause grievous bodily injury to the deceased."

18. Not only, he argued, did the judge again fail to make any reference to the possibility of a lesser verdict; he effectively withdrew the issue from the jury, by that passage in his summing-up which directed the jury that the statements, if full weight were given to them, constituted confessions by each defendant to facts which amounted in law to murder.

19. What the judge ought to have said, it was suggested, was that if the jury regarded those confessions as true, it would be open to them to bring in a verdict of murder but that if they thought that the common intent was to cause less than grievous bodily injury, they would be entitled to bring in a verdict of manslaughter.

20. Insofar as this passage can be said to contain an expression of the judge's view as to fact, this was a comment that he was entitled to make, bearing in mind that it began with the phrase "If you give full weight to these statements" and that he delivered a general warning at the beginning of his summing-up, that if he expressed views on the evidence, it was for the jury, as judges of fact, to ignore what he said if they disagreed with his comments.

21. Insofar as this passage could be said to amount to a direction in law, it is necessary for us to consider whether the contents of the statements justify such a comment, since in our opinion it does effectively direct the jury that the statements amount to confessions to murder and thus withdrew from the jury the issue of manslaughter on the ground that the defendants might have intended to cause less than serious bodily harm to Wong.

Contents of statements

22. D.1, in his statement, described how he and three others came down from the roof of the shop in Yen Chau Street and followed the girls into Yu Chau Street. There a conversation took place between him and the two girls through a grille.

23. According to him, the deceased opened the grille and came out, carrying a length of iron waterpipe with which he struck at D.1, who dodged it. One of his friends picked up a wooden rod and fought with the attacker. He retreated to the shop, where he picked up a piece of iron waterpipe. His statement continues as follows -

"(I) at once picked a length of iron water-pipe from the ground incidentally. Yau-chi also held a length of water-pipe, and followed me. We rushed downstairs together. (We) walked to the road-side outside No. 305 Yu Chau Street, and fought against the man. The four of us attacked him jointly. Each blow I struck landed on his length of iron water-pipe. I struck four or five blows before (I) managed to cause his length of iron water-pipe to fall off from his hand, when (we) saw that he did not have the length of iron water-pipe with him, we aimed our blows at his head, and struck at the man on his head and body. The blows made him crawl on the ground. Then, we each threw away (our) iron water-pipes and wooden rods which (we) had used in the assault and discarded them on the ground. (We) ran away in different directions."

24. D.3 described how Ah Wing had come to his room nearby, to tell him that a dispute had been taking place. The relevant passage of his statement reads as follows -

25. D.1 thus alleges that the victim was armed with a pipe when he came out into the street. D.3 similarly asserts that the deceased warded off the blows, which D.3 struck, with a length of iron waterpipe which he held until he lost his grip on the waterpipe.

26. D1's statement, interpreted in the manner most favourable to him can only, in our view, be interpreted as containing a clear admission that D.1 intended to cause serious injury to the victim, at a time when the victim was no longer armed, even if he had earlier been carrying a pipe.

27. The evidence against D.3, as contained in the statement, can be summarized as follows. D.3 was asked by a friend of his to assist in beating someone up. As he left his room he saw that his friend was holding a length of iron pipe in his hand. D.3 must, therefore, have realized that serious injury to the person to be beaten up was in contemplation.

28. Furthermore, he admits that he picked up a wooden rod and took part in the attack on the victim, who struck a blow which D.3 warded off with the wooden rod which he was holding.

29. He said that he then retreated while his friends continued the attack. When the deceased dropped the iron waterpipe, the others went on hitting him till he fell to the ground, whereupon D.3 came forward and kicked at the man as he lay there.

30. We do not see how the admissions in this statement by D.3 could amount to anything less than participation by him in a group attack involving the use of dangerous weapons and that at the very least he must have realized that there was a possibility that one or other of his group would use his weapon intending to inflict serious bodily injury on the deceased. See CHAN Wing-siu v. R.⁽¹⁾ . When he armed himself with the wooden rod,  he knew that an attack of this nature was intended; and he took part in the attack himself. Even if he temporarily withdrew from the attack, when the pole he was carrying was broken, he remained ready to assist the others in the group in carrying out the common intent and then himself continued the attack by kicking at the victim as he lay on the ground.

31. We think that it would have been better, if the judge had- indicated to the jury that it was a matter for them to decide whether the statements amounted to admissions of such facts as would establish an intent to cause grievous harm, and that, if they were satisfied that the intention of the group was to cause less than serious bodily injury they could properly convict the defendant of manslaughter.

32. Had he done so, however, we think that any reasonable jury must have concluded, as we have done, that the admissions made by the defendants amounted to admissions of participation in an attack intended to cause grievous bodily injury. We are satisfied, therefore, that there was no miscarriage of justice and that we can properly apply the proviso.

Provocation

33. The other main ground was that the judge had failed to direct the jury adequately on the issue of provocation. Although no objection was taken to that part of the summing-up which dealt with the law governing provocation, it was argued that the judge should have reminded the jury of the independent evidence which supported the defence that the deceased was the aggressor and was armed with a waterpipe when he first emerged from the staircase.

34. It was not disputed that the judge did refer in sufficient detail to the evidence which bore upon this issue at an earlier stage in his summing-up, where he reminded the jury of those parts of the statements which assert that the victim had been armed with a waterpipe and of the medical evidence which suggested that injuries found on the deceased's thumb and forefinger could have been caused by the deceased holding a cylindrical object, like a waterpipe, in his hand when he was struck. But it was submitted that he should have reminded the jury of these matters again, in the context of his direction on provocation.

35. The judge reminded the jury, when directing them as to the law on provocation, that they must take into account everything that was done and said according to the effect which, in their opinion, they thought it would have on a reasonable man. In this context he referred to passages in the statements of the two defendants which referred to actions which the defence say provoked them, including references to the deceased being armed with an iron pipe.

36. The judge concludes this part of his direction by telling the jury that "if you are satisfied that these acts did take place, that these words were said, you must ask yourselves whether a reasonable man would not have been provoked by such acts and words to act as the accused did. If you are satisfied that a reasonable man would not have been so provoked then you do not consider the issue of provocation."

37. Elsewhere, the judge has directed the jury that they must take into account "everything that was said and done" according to the effect on a reasonable man when deciding the issue of provocation.

38. We think that it must have been clear to the jury that, when considering provocation, they must give weight to such evidence as suggested that the deceased had been aggressive at the start of the affray and that there is no substance in this ground.

39. Both appeals against conviction are dismissed.

(1)    [1984] 3 W.L.R. 677 PC.