YU KIN LUNG v. W.B.G. BANKS ESQ. HER MAJESTY'S CONRONER FOR HONG KONG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

NO. MP3907 OF 1990

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JUDGMENT

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1. I have before me a motion for judicial review in which Sergeant YU Kin-lung (the applicant) of the Royal Hong Kong Police Force seeks an order of certiorari to quash a verdict of death by unlawful killing given at an inquest held at a coroner's court on the 8th August 1990. The inquest related to the death of CHENG Kin-lok (the deceased) who was shot whilst escaping from a robbery committed on the 24th August 1989 at an audio-visual centre in Telford Gardens.

2. Leave for judicial review was granted by Barnett J. on the 6th December 1990.

3. The facts reveal that in the early hours of the morning of the 24th August 1989 the deceased, together with five other men, robbed a Mobil petrol station in Kwun Tong. During the robbery one of the employees was assaulted. Two stolen vehicles, a car and a white van registration No. CT2001 were used by the robbers. The deceased was the driver of the van.It appears that the robbery of the petrol station was intended to divert the attention of the police from the real target which was the Fotomax Audio Visual Centre at Telford Gardens.

4. The robbery at the petrol station was reported to the police and included details of the registered number of the van, its colour which was white, and that on one side were printed in red four Chinese characters representing the name "Nam Fung Engineering Company".

5. At about 5 a.m. on the 24th August 1989, the applicant was on patrol duty in a police Land Rover, with three police constables under his command. The vehicle was travelling along Kowloon Bay when a radio message was received with details of the robbery committed at the Mobil petrol station. The applicant remembered having seen the van in question about fifteen minutes earlier near around-about at the bus terminal at Telford Gardens. Accordingly the police party went to the entrance of the car park at Telford Gardens.

6. Two of the police constables were instructed by the applicant to make a search in the car park whilst the driver of the Land Rover parked across the exit in order to block any vehicles that might try to escape.

7. Shortly afterwards, the applicant saw a van coming towards him at a very high speed followed by a car. The two police constables who had gone to make the search tried to stop the van, but had to jump out of the way when it failed to stop. The applicant who saw three men seated in front of the van shouted for the vehicle to stop, but his order was ignored, with the result that he fired two shots from his revolver from in front of the van at the position shown in the photographs exhibits 1-6 and I-7.

8. As the van slowed down after these shots had been fired, the applicant moved to its rear and round to the offside where he saw the person.who was sitting next to the deceased, make a gesture pointing at him. He believed that this person was armed and was trying to shoot him, so he fired two shots at him from the position shown in photographs exhibits I-5 and I-8.The van then accelerated round the corner to the exit pursued by the applicant who fired a further shot from the position shown in the photographs exhibits I-9 and I-10. The van then managed to make its getaway.

9. Two shots hit the deceased, one on the left cheek and the other on the back of the right shoulder which severed the right brachial artery. The deceased neglected to go to hospital for several hours after he was shot and eventually died seven hours later at about mid-day at the Queen Elizabeth Hospital. The cause of death was due to gunshot wounds to the face and right arm.

10. In his evidence at the inquest, the applicant said that he used his revolver in order to effect an arrest and to protect.himself from being knocked down by the van as it approached him. The coroner, Mr W.B.G. Banks, in his summing-up to the jury, gave directions that on the evidence, the only verdicts open were either death by lawful killing or death by unlawful killing. He drew the attention of the jury to paragraphs 4 and 7 of Regulation 29-02 of Police General Orders which deals with the circumstances when a police officer is permitted to use a firearm. These paragraphs where relevant read as follows :-

provided that no lesser degree of force can achieve these objects.

Paragraph 7 where relevant reads :-

"7.     Notwithstanding the provisions of paragraph 4, a Police Officer shall not open fire at a moving motor vehicle, ... unless :-

 

11. Having read and explained these paragraphs, in fact according to the record he read the whole of paragraph 7, although I have only referred to part, the coroner went on to say :-

                "If you consider at the time Sgt. YU reasonably concluded

12. The jury returned a unanimous verdict of Death by Unlawful Killing.

13. Mr Tang, counsel on behalf of the applicant, submitted three grounds for relief :-

14. Mr Yuen who appeared for the coroner sought to uphold the verdict on the grounds that although the applicant could have been acting in self-defence when he fired the first two shots when the van did not stop but continued to move towards him, he could not have acted in self defence when he fired the other three shots for they were fired from.behind when he had adopted an offensive position. Mr Yuen submitted that by their verdict the jury must have disbelieved the applicant so that a prima facie case of unlawful killing had been established.

15. In answer to a question from the jury as to why he hadtaken out his revolver, the applicant said :-

"I had reason to believe this van would hit me when I went out to intercept it fully aware that I was in danger. It was my duty to effect an arrest of these people and also in order to protect myself I took out my revolver just to put myself on guard."

16. However, it is abundantly clear from the evidence thatthe applicant did not use his revolver in self-defence but inan attempt to effect an arrest. When the van approached and failed to stop,the applicant was quite entitled to use his revolver to fire the first two shots, but it is most improbable that either of those shots struck the deceased.  In moving round to the other side of the van, the applicant believed that the person sitting next to the deceased was armed and was about to shoot, so he fired the third and fourth shots. The fifth and final shot was fired as the van was making its getaway. However, it must be borne in mind that all five shots, according to the applicant, were fired within a matter of about ten seconds.

17. The jury were invited by the coroner to consider the three situations under paragraphs 4(a), 4(b) and 7(b) of Regulation 29-02, in the alternative, and that if the applicant could not have reasonably concluded that one or more of those circumstances existed, a verdict of death by unlawful killing would be justified.

18. Police General Orders do not, of course, have the force of law, but only amount to guidelines. Nevertheless, upon the evidence, only paragraph 4(b) was relevant to this case for the applicant knew that a serious or violent crime had been committed at the petrol station and it was clearly his intention to effect an arrest. However, it must be assumed that the jury decided that the applicant could not reasonably have concluded that one of the three situations outlined by the coroner existed which was contrary to the directions that were given. Further, no directions were given by the coroner with regard to each of the shots that were fired, nor were the jury asked to consider the state of mind of the applicant at the time of the shooting and his reasons for firing the five shots. There was, therefore, a failure by the coroner to direct the jury properly whilst the direction given underRegulation 29-02 of Police General Orders amounted to a misdirection. No reasonable jury, if properly directed, could have upon the evidence,returned a verdict of death by unlawful killing.The verdict was perverse and irrational. Although the five shots were fired from different directions, they were fired in a matter of a few seconds with the object of making an arrest. Any reasonable jury properly directed would have returned a verdict of death by lawful killing.

19. In view of my decision, it is unnecessary for me to consider the other submissions that were made. There will therefore be an order of certiorari for the verdict to be quashed.