THE QUEEN v. HO CHIN CHIU

_________

_______________

J U D G M E N T

_______________

Penlington, J.A. delivered the judgment of the Courts:

1. The applicant herein, Ho Chin Chiu, was convicted by Garcia, J. and a jury on the 22nd September 1988 on a charge that on the 10th April 1987 he murdered Yip War Man ("the deceased"). He now seeks the leave of this Court to appeal against that conviction and the sole ground of appeal relied on is an alleged misdirection by the trial judge as to the capability of the deceased, who had received certain wounds, in continuing to attack the applicant, as alleged, there being no medical or other evidence as to whether he would have had that capability.

2. In view of the limited ground of appeal which has been argued for the applicant there is no need to set out the evidence in this matter in any detail. The events of the 10th April 1987 were that the deceased, who was a man of bad character, had been charged in the Kwun Tong Magistrates Court in November 1986 with the offence of possession of an offensive weapon in a public place. The applicant was called as a witness for the deceased but nevertheless despite his evidence the deceased was convicted and sentenced to 6 months' imprisonment. Following that it would seem an approach was made by the applicant to the deceased's brother for payment of his expose involved in giving evidence. This was resented by the applicant and led to a confrontation between them at block 7 of the Tsui Ping Road Estate on the 10th April 1987 which started out with an attack by the deceased on the applicant in the form of punches to the face. The applicant did not retaliate but evidence was called from two witnesses, Chan Siu Ping and Chan Chi Wah, that shortly afterwards the applicant told them he had been assaulted by the deceased and that he would seek revenge. These two witnesses also gave evidence as to the actual events which toot, place when the deceased received his fatal injury but it would seem they were not very satisfactory witnesses and most of the evidence as to those events came from two brothers, Lam Wing Ho and Lam Wing Fui, who were the sons of the proprietor of the Choi Kee Restaurant. Lam Wing Ho said that he knew both the applicant and the deceased and that he saw the applicant chasing the deceased past his restaurant, the applicant being armed with a knife. He said that the deceased picked up a folding stool in order to ward off the blows which were aimed at him with the knife and he also used his left arm. The deceased fell to the ground but managed to get up and continued running away although he could see the deceased's thigh had been cut. He did not see the deceased actually used the folding stool to hit the applicant. Lam Wing Fui said that he also saw the fight and saw the deceased pick up the stool and heard the deceased endeavouring to placate the applicant. He said he saw "the rising and falling of the knife 3 or 4 times". He also however said that he did not see the deceased hit the deceased hit the applicant.

3. Wong Tung Choi gave evidence relating to the earlier incident in which the applicant was assaulted by the deceased following which the deceased remained in the Tai Hing Restaurant and then went over to the Choi Kee Restaurant where the fight took place in which the deceased received his fatal injury. He also said that the applicant was holding a knife ant that the deceased was trying to kick the hand which was holding that knife. He said that he saw "upward and downward movements" made by tile applicant and that the deceased was then bleeding. The deceased ran away with the applicant chasing him before he eventually collapsed. None of the Crown witnesses saw any other person attacking the deceased or being in company with the applicant.

4. The applicant gave evidence in which he said that he had been assaulted by the deceased because of the dispute regarding the payment of the witness expenses but that there were some four other persons with the deceased at the time. He was punched and kicked and he then ran away pursued by the others. He passed a vegetable store on which here was a knife and he took this up so as to threaten his pursuers. Thus armed he then became the pursuer rather titan the pursued and he chased the deceased until they reached the Choi Kee Restaurant. There he attempted to conclude a truce with the deceased but the deceased did not agree to that and, picking up a folding stool, attempted to hit him with it. He said the stool landed on his right hand, in which he was holding the knife, and broke a bone in it. There was however no medical evidence regarding this as, following the incident, the applicant fled from Hong Kong and did not return for approximately one year. The applicant said that he slashed at the deceased's arms because he was trying to hit him with the stool. The deceased then tried to kick the hand which held the knife and he cut the deceased on the thigh. The medical evidence was that this was the fatal injury in that the femoral artery was severed and the deceased bled to death.

5. The medical evidence went on to say that in addition to the deep wound on his thigh the deceased had two deep out wounds on his back and two others on his right arm. These other wounds were severe and would have caused bleeding which contributed to death but were not in themselves fatal.

6. There is only one passage in the summing-up which is the subject of complaint. It refers to these injuries and begins as follows -

"    Now if the defendant was defending himself from the attack which he said was launched on him by the deceased, would you expect that after the deceased had been cut in the way shown in the pictures on his right arm he would have been able to ut1lise that arm further? Would you also expect that after having been cut on his left back the deceased would still have continued to be able to use his left thigh or left leg to kick at the defendant's knife?"

This passage is the subject of objection on the basis that there was no medical evidence to support the issue raised by the trial judge that the deceased could not have behaved in the manner alleged by the applicant in his evidence because of the injuries he had received. We do not think there is merit in that objection. It is true there might have been medical evidence as to the ability of the deceased to behave despite the injuries he had received in the way that was alleged. We are satisfied, however, that the effect of the direction was to do no more than ask the jury to use their common sense when assessing this part of the evidence. Further the judge went on to say -

“    I think also you can infer from his evidence, and also from the evidence of this wound which was caused ire the deceased's left thigh, that he had used his left thigh, or left leg, or left foot, to kick at the defendant? However, I will leave these mattes with you, because it is your task to find the facts from the evidence.”

This might at first sight appear to be in conflict with what the judge had just suggested to the jury i. e. that the deceased, because of the injuries he had received, might not have been able to kick at the applicant in the manner alleged. We do not think, however, that there is any conflict. The judge was, in the first paragraph, asking the jury to consider whether it was likely that the deceased would have attached the applicant n the sequence suggested by the applicant, i.e. after being wounded on his arm and back, and was then, in the second paragraph, reminding them that, whatever sequence, the nature of the wound on the leg clearly indicated that it was inflicted while the deceased was kicking at the applicant. Moreover the judge was at pains to leave all of these matters of fact to the jury to decide. We do not consider that there was any misdirection on this point such as to in any way make the conviction unsafe.

7. Taken as a whole this was an admirably clear, accurate and succinct summing-up. Only one point is taken in relation to it and we are satisfied that what was said was not such as to mislead the jury. The application for leave to appeal against conviction is refused,