THE QUEEN v. LAI WING-YIN AND ANOTHER

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JUDGMENT

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Sir Alan Huggins, Ag. C.J.:

1. The two Applicants were indicted for murder. They were convicted of manslaughter and applied for leave to appeal against their convictions.

2. There was a gang fight. The Deceased was in a group of youths which was challenged by another group as to its triad affiliation. The first group was then attacked. All escaped except the Deceased, who received six stab wounds, five of them caused by a sharp penetrating object such as a knife and one by a relatively blunt object with a "roundish" section. One of the penetrating wounds caused the death. The knife which caused it could have been a pocket knife. The two Applicants were identified as being in the attacking group. They themselves were carrying wooden bars and other members of their group had wooden poles and sharpened pieces of iron water-pipe. The fatal wound was inflicted by a man in their group.

3. The case for the Crown was necessarily presented on the basis that the Applicants were engaged in a common enterprise with the killer, and the question on the appeal is whether the judge's direction as to the law relating to joint enterprise was correct. Having discussed what the jury would have to find to convict of murder, the judge went on:

That direction is not criticised, but, after the jury had been out for about four and a half hours, the jury indicated that it wished to ask a questions. That question was:

"If a group of people set out to attack one or more persons but do not intend grievous bodily harm or murder and if unfortunately one or more persons died as a result of this attack, are all the members of the group equally guilty of manslaughter?"

The judge then gave further lengthy directions and it is these directions which are objected to. It was important that they should have been correct, because they clearly coloured the jury's decision, especially as the jury returned its verdicts without again leaving the jury box.

4. In a most helpful argument  Mr. Macrae has contended that the judge was in error in that he applied an objective test of what a reasonable man would foresee instead of a subjective test of what these Applicants did in fact foresee. The foundation of his argument is the fact that there was no evidence that the Applicants knew that any member of their group had a knife, so that the stabbing of the Deceased with a knife could not have been within the contemplation of the Applicants and they could not be guilty of manslaughter. He thus became involved in drawing distinctions between the various kinds of weapon which might be used in offences of murder and manslaughter.

5. A conspirator is held criminally responsible only for acts done in furtherance of the conspiracy. If one member of a gang, unknown to his associates, carries a weapon of a type the use of which was not within the concerted action agreed upon and by his use of that weapon causes the death of the intended victim of all of them, it would be unjust that anyone but the killer should be held responsible. It is always a question for the jury whether a weapon used to inflict a fatal wound is of such a kind that it was within the contemplation of the conspirators. The judge here pointed out that the jury must be satisfied not only that dangerous weapons would be used but also that the weapon which caused the death of the deceased was "of a similar type of weapon to what had been agreed to".

6. The first question which the jury had to ask itself was a subjective one: "What was the concerted action to which the Applicants assented and did it include the carrying of dangerous weapons of the type used by the killer?" We have just seen that the judge clearly left this to the jury. The second question the jury had to answer was an objective one: "Would a reasonable person have appreciated that such concerted action with those dangerous weapons would be likely to lead to injury?" In view of the evidence that they themselves were carrying wooden bars and that other members of the gang were carrying sharpened pieces of iron water-pipe and wooden poles, any reasonable man must have realized that a concerted assault by the group upon the Deceased would be likely to lead to injury. It was not material whether the Applicants themselves did consider what was likely to happen. This approach is, we think, in accordance with the advice given in CHAN Wing-shiu v Reg. Privy Council Appeal No.53 of 1983, where three men killed another in the course of a robbery. All three were carrying knives. One of them shouted "Stab him down" and another stabbed the man - inflicting a fatal wound. As they left the flat one of them shouted "Stab her down too", and on of the men thereupon slashed the man's wife on the head. All were convicted of murder. In dismissing the appeals the Privy Council said:

"Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic."

and then further on in the opinion:

"The test of mens rea here is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person's mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury. The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned. If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm."

Their Lordships appear to have approved the direction of the trial judge when he said that if they found "that the knives would be used to do no more than frighten the occupants, then he would be guilty not of murder but of manslaughter".

7. We turn, then, to the final directions of the judge in the present case, remembering that we are concerned with convictions for manslaughter and not for murder:

"So, that is the position, members of the jury, and in the circumstances that your question poses, the defendant would not be guilty of murder. He would be guilty of manslaughter if he had gone out with a gang to attack and he knew that some of them were armed with dangerous weapons and an ordinary person not necessarily he, but an ordinary person, would, in the circumstances, have thought there is a real risk of harm even though not serious harm being done to the person attacked in the circumstances of a gang armed with those weapons going out, and additionally, if an ordinary person would have appreciated that it was on the cards, that in such a sort of confusion and attackers, one might use a weapon that was concealed of a similar nature to an iron bar, that would cause a similar type of stabbing wound, for example, a knife."

It is clear that the judge was leaving it to the jury to decide what was the nature of the enterprise to which the Applicants were lending their aid. This involved the application of the subjective test. He then left it to the jury to decide whether an ordinary person would have foreseen the risk of injury. This was the objective test. In our view, these directions were correct and we dismiss the applications.

19th September 1984