THE QUEEN v. KWAN CHI HUNG

----------

-----------------

JUDGMENT

-----------------

Hon. Yang, C.J.:

1. Upon dismissal of this appeal against conviction, we indicated that we would give our reasons later. This we now do.

2. The appellant was convicted before Barnes, J. and a jury on one count of murder (Count 1) and two counts of wounding with intent (Counts 2 and 3).

3. In January 1987, three men, namely, Tse, Ngan and another person did something to a hawker's stall in Kam Tin which resulted in a fight. The appellant was one on the opposing side of that fight. On 11th February 1987, the appellant was attacked when he was about to board his car, a Daihatsu bearing registration no. DJ 7543. The attackers were Ngan and Man, both of whom were members of the Wo Shing Wo Triad Society. In the attack the windscreen of the appellant's car was smashed by chopper. The appellant managed to escape. He reported the attack at the nearest police station, naming Tse as one of his attackers. He also said he did not know the other two attackers and had never seen them before. On the following day, the 12th, when interviewed by a police detective, the appellant named his two other attackers as Ngan and Man. In the early hours of the 14th, Ngan, Man and Tai were in the Yan Lok Square Playground, Yuen Long, talking with some young men and women. The young women then left. Some other men then entered the playground and attacked Ngan, Man and Tai with knives. In the attack Man had one hand completely severed and the other almost severed (Count 2). Tai suffered two cut wounds (Count 3). Ngan was so severely injured that he died shortly afterwards (Count 1).

4. Four of the prosecution witnesses are Chan Chi-fung (Chan), Chow Cheung-ming (Chow), Yau Kwong-man (K.M. Yau) and Yau Chin-chung (C.C. Yau) who took part in the attack and are now in prison having been convicted on the three counts now under consideration. The applicant and his men belonged to the 14K.

5. After the attack the youths all returned to a gambling stall operated by the appellant at Wang Chau. There Chan told the appellant he had injured his leg during the attack. The appellant then drove him to see a doctor. The appellant lied to the doctor and said that Chan had suffered an injury whilst barbecuing chicken.

6. On the appellant's instructions to change out of and disposed of their blood stained clothes, K.M. Yau and Chow went to K.M. Yau's home where K.M.Yau related to his neighbour the details of the chopping incident. The appellant then arrived in his car DJ 7543 to collect K.M. Yau and Chow and took them to Jordon Road. There the four attackers, one Cheung Keung-ho (nicknamed Shanghai Chai) and another person known only by the name of Sor Kau were treated to a meal by the appellant. After the meal, the appellant took them to a villa where he paid for three rooms for the night for those men. Before retiring the appellant told Chow to feed the parking meter where DJ 7543 was parked, but when Chow went to do so at 8 a.m. that same morning, the appellant and the car had gone. On 4th March 1987 the appellant's car was found by the police. In November 1988 the appellant surrendered to the police.

7. The evidence that the appellant was present at the attack and participated in it came from two witnesses, one Yip Kin-keung (Yip) and the victim Man. Yip identified the appellant and Shanghai Chai as the two who entered the playground, carrying knives and chasing after Tai. He also saw the appellant chopping Ngan. Man simply said the appellant was one of those in the playground armed with a knife. The judge pointed out the defects in the evidence of Yip and Man and concluded by saying:

"The weakness in this identification evidence is such that you could not safely act on it unless you find other evidence to support its accuracy. And there is no such evidence. In fact, if you accept the other evidence given by the attackers, you could not possibly accept the identification evidence and find the defendant guilty as a participant on the basis of presence and assistance at the scene. So that leads to the question whether the evidence establishes that he was a guilty party on the basis that he requested or directed, planned and organised the attack.''

8. The weakness of the evidence in this respect was clearly stressed.

9. The evidence pointing to the appellant's role came from the four convicted attackers Chan, Chow, K.M. Yau and C.C. Yau. The evidence was that shortly after mid-night of the 13th February the appellant told his men that he had located the rival group of Wo Shing Wo. He distributed knives to each of the four men and told them to go to the Playground by taxi to chop the group in a revenge attack. He drove himself to the Kar Ho Restaurant hear the playground and gave the attacking group instructions as to how they were to enter the playground from different sides, how another man who was with them was to position himself as a lookout, who was to give the signal to attack, and how they were to attack members of the rival group. Afterwards, all four men and the appellant discussed the attack.

10. That evidence placed the applicant very close to  the playground at a time very shortly before the actual attack.

11. Mr. McCoy, who appears for the applicant in this court, complains, first, that the indictment as drafted contained defective counts in that the individual counts gave no indication of the case the Crown intended to present, that is of the applicant being a counsellor and procurer or an aider and abettor of the offences charged. In any event there should have been separate charges for each aspect. In support, he cites the D.P.P. v. Maxwell [1978] 1 WLR 1350. It is correct that in Maxwell three of the Law Lords stated that it would be desirable, where the Crown alleged not full participation by an offender but an attachment to an offence by way of aiding or abetting or counselling and procuring, that this be made clear in the particulars of the indictment. He has referred us to the Indictment Rules and in particular to rule 3 which requires particulars to be given.

12. Mr. McCoy's second ground impinges sufficiently on his first so that it is convenient to deal with both together. It is that there was a material irregularity in that the Crown presented its case on each count in the alternative: either that the applicant was guilty of each count because he was a counsellor or procurer or because he was an aider and abettor of the offences charged. He adds to that a rider that the judge failed to leave to the jury what he describes as "an alternative offence" contained in s.5 of the Offences against the Persons Ordinance, Cap. 212.

13. In his third ground, which again impinges on the other two, Mr. McCoy submits that that the trial judge erred in law in failing to direct that in addition to being unanimous on murder in their verdict, to so find they must also be unanimous that the applicant was either an accessory before the fact or unanimous that he was an aider and abettor but not part one part the other. The same point is taken in respect of the wounding counts in that the jury should have been required to render a verdict by a majority, or unanimously, either that the applicant was a counsellor or procurer or that he was an aider and abettor.

14. The fourth ground, in the alternative, alleges that the Crown's case against the applicant proceeded from the outset upon the basis that he was a counsellor and procurer and "not an attacker" and implies that there was a change of case at the conclusion of the evidence.  With respect to Mr. McCoy, this was not so.

15. The Crown proceeded from the outset on the basis that the applicant was guilty of causing grievous bodily harm either as an aider and abettor - presence at the scene and involvement in the incident - or as a counsellor and procurer - the arranging for the attack, the provisions of knives and the instructions given as to the carrying out of the attack.

16. It is true that in the course of his evidence Yip did identify the applicant as the user of a chopper and Man placed him there as a person with a knife but the Crown quite clearly were dubious as to the reliability of the identification evidence and counsel then appearing for the Crown did not open his case on the basis that the applicant was a direct attacker merely that, on Yip's and Man's evidence, he was present in the course of the incident.

17. The manner in which the Crown presented its case was conditioned by the evidence by which it sought to support that case. It was necessary to run, combined, aid and abet and counsel or procure. Even the evidence relating to counselling or procuring, if believed, emanating as it did from the four accomplice attackers, contained elements of aiding and abetting by placing the applicant close to if not at the actual scene of the attack which he himself had engineered. These were not clear cut alternatives and bear little, if any, relationship to the facts in The Queen v. Lau Chi Kin [1988] 1 HKLR 282. Were the drafter to attempt to give the particulars in the indictment, which Mr. McCoy says he should, the real probability is that the jury, having that indictment before them, would have been confused. Provided that the defence were not taken by surprise, which we do not think they were, no injustice was here caused. We do not think the indictment to have been defective.

18. There was abundant prima facie evidence that the applicant was a participant, albeit not direct, in the offences charged. The evidential basis of that participation was before the jury in all its detail. They could have been under no misapprehension as to the case for the Crown. This, in particular, in so far as the trial judge in the course of his summing up specified the defects of the (identification" evidence of Yip and Man as we have earlier indicated. That the jury were under no misapprehension is made clear by the re-directions they requested some two hours after they had entered upon their deliberations.

19. The addendum to ground 2 relating to the alleged failure of the trial judge to leave what Mr. McCoy terms an alternative offence under s.5 of the Offences against the persons Ordinance is a novel point. No member of this court is aware - and no authority anywhere within the Commonwealth has been cited - of s.5 ever being left to a jury as an alternative to murder. Section 5 which comes, as amended, from the English Offences against the Persons Act of 1861, reads:

"All persons who within the colony conspire, confederate, and agree to murder any person, whether he is a subject of Her Majesty or not and whether he is within Her Majesty dominance or not, and any person who within the colony solicits, encourages, persuades or endeavour to persuade, or proposes to any person to murder any other person, whether he is a subject of Her Majesty or not and whether he is within Her Majesty dominance or not shall be guilty of a misdemeanor and shall be liable to imprisonment for life"- [a sentence which was previously one of 10 years' imprisonment.]

20. We have little hesitation in finding Mr. McCoy's point to be unsound. Section 5 contemplates such matters as advocating the murder of a class or the writing of a letter advocating, Soliciting or encouraging the murder of an individual. It is not intended to relate to physical attempts to kill or to a killing itself.

21. Mr. McCoy seeks to persuade us in his third ground to hold that there was a duty upon the judge to direct the jury that they must be unanimous on the factual basis of their verdict in relation to the offence of murder by being unanimous either as to the applicant being a counselling or procurer or as to his being an aider or abettor. Mr. McCoy submits that it would be wrong for a jury to bring in its verdict on the offence charged if some members had reached that verdict through the aiding an abetting route and others had reached it through the counselling and procuring route. He suggests the same in relation to the wounding counts when directions were given to them as to a majority verdict.

22. This might be termed the Kevin Brown [(1984) 79Crim.App.R. 115] point, an issue dealt with in full by this court in The Queen v. Tam Chung Shing and Others, Criminal Appeal No. 405 of 1988 heard on 17th November 1990 and still, surprisingly, unreported. He has also, and very properly drawn our attention to Thatcher v. R. [1988] LRC (Crim)  p.86, a case from Canada which is directly against him.

23. What we are concerned with here are the convictions for the offences charged. In the light of the judge's summing up and of the question asked by the jury to which we have earlier referred, we have little doubt, though of course we cannot see into the mind of the jury, that they approached their verdict on their basis of the instigation by the applicant of this vicious attack. But even if that were not so, they were perfectly entitled to take the whole of the evidence into consideration and, given the nature of that evidence, it was wholly unnecessary for the trial judge to give the directions which Mr. McCoy suggests he should have. The whole issue was whether the applicant had, and in what manner, intentionally caused death or grievous bodily harm. It matters not what route, on the generality of the evidence, the jury took to find that he did.

24. In his fourth ground Mr. McCoy suggests that counsel then appearing for the applicant was "deprived" of dealing with the evidence in a proper manner being misled by the way in which the Crown presented its case and in particular by the use of the expression "joint enterprise" by Crown counsel in his closing address. We accept that the use of the phrase "joint enterprise" was unfortunate in that it certainly alerted the minds of the lawyers in court to all the concomitants which that phrase in law attracts. We have no doubt at all that it was not being used as a term of art but merely as a compendious term to describe the events which concerned the applicant and the evidence relating to them. The defence, if it can be called that, came from assertions in cross-examination that the applicant was never, there and was not an instigator. Counsel, as he was perfectly entitled to do, attacked very strongly the credibility of those who gave evidence. The applicant himself did not  give evidence.

25. We are in no way persuaded that experienced counsel was in any way inhibited from presenting such case as he had or was deprived from fully dealing with the issues. The trial judge, quite rightly, did not leave issues of joint enterprise to the jury. He did address them in full on the facts basing the aiding and abetting and the counselling and procuring, clearly warning them, as we have earlier indicated, that it was the evidence of those who said that the applicant instigated and arranged the attack that was to be concentrated upon.

26. Mr. McCoy's final ground stems from a reliance on a ruling given by a judge at first instance in the Old Bailey in 1867 (R. v. Webb (1867) 11 Cox CC 133).

27. The background to his submission is that the Crown called in the course of the trial a witness who was then under sentence of death - Chau Cheung Ming. At the time of trial that sentence had not been commuted, though it later was to imprisonment for 35 years. In Webb, Lush, J. (as he then was) held, when the defence sought to call a fellow prisoner in evidence on behalf of the accused which intended witness was under sentence of death, that he was not a competent witness because of that disability. In the old law he was civilly dead - corrupt in blood, attainted and an outlaw - and Lush, J. did not think that the provisions of the Evidence Act (6 & 7 Vict. c.85 Lord Denman's Act) removed his incompetence. The matter went no further in England at that time for, although Lush, J. Was prepared to reserve the question for the Court of Crown Cases Reserved, the defendant was acquitted.

28. The matter next arose in Ireland when, on 6th November 1884, Patrick N. Fitzgerald was on his trial for treason felony in Green Street Court House. We have had the benefit of a transcript of the arguments which took place on that day, advanced by the Attorney General seeking to call and Dr. Webb, Q.C. seeking to resist the calling, of a witness who was under sentence of death but whose sentence had in fact been commuted prior to the trial date. This is a transcript which came from the archives of the Oireachtas for it appears in no official report. It is a fascinating exposition of the effect of sentence of death upon a man - and of the florid and hyperbolic advocacy of the day. Dr. Webb, in his impassioned objections to the calling of the witness, cited the language of scripture "he is a dead man while he liveth" and the words of Blackburne that "the man is not fit to breathe and why should he be admitted to poison the atmosphere of a court of law?."

29. This is all arose from the ancient law that a man sentenced to death suffered attainder and was an outlaw - in law he had ceased to live. Mr. McCoy suggests that this concept still runs within the laws of Hong Kong and supports his submission by the construction he places upon s.69 of the Criminal Procedure Ordinance which abolished attainder - s.47 abolished outlawry - contrasted with the terms of ss.2 and 3 of the Offences against the Persons Ordinance, Cap. 212 and he places particular reliance on the wording of s.3 which reads:

"On conviction for murder the court shall pronounce sentence of death, the same may be carried into execution, and all other proceedings upon such sentence in respect thereof may be had and taken, in the same manner in all respect a sentence of death might have been pronounced and carried into execution, and all other proceedings thereon and in respect thereof might have been had and taken, before the commencement of this Ordinance, on conviction for any other felony for which the prisoner might have been sentenced to suffer death as a felon."

30. The Ordinance itself commenced on 14th June 1865 and s.3 was clearly inserted, by Ordinance I of 1866, stemming from the English Offences against the Person Act of 1861. It is his submission that the law before the commencement of the Offences against the Persons Ordinance in 1865 still exists and is not altered by s.69 of the Criminal Procedure Ordinance which stands by itself. There was no consequential amendment to s.3 when attainder - and indeed outlawry - was abolished.

31. With respect, we do not agree. It is clear that the old law by which' a witness under sentence of death, commuted or not, was an incompetent witness has long since left our legal scheme. We note that Harrison, J. in Fitzgerald distinguished Webb on the basis that commutation had already come into effect before the witness was to be called and he admitted the evidence. It is a footnote to history that Fitzgerald was acquitted.

32. The Court of Appeal of Manitoba, when the same issue arose in 1915, (R. v. Kuzin (1915) 8 WWR 166), also found that a witness suffering from that apparent disability was a competent witness. It is noteworthy that in The Times - or as the note to another Canadian case refers it as "The London Daily Times" - of 3rd March 1865, an English judge did admit the evidence of a witness under sentence of death, a ruling not apparently brought to the attention of Lush, J. in Webb in 1867.

33. Ingenious though this point may be - and it did not occur to anyone in the court below - and while Mr. McCoy's aptitude for research and the culling of old cases from long forgotten cupboards is remarkable - we find no material, or other, irregularity.