THE QUEEN v. CHIU SUI LEUNG

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J U D G M E N T

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Hon. Yang, CJ:

1. The applicant was convicted after trial of manslaughter and sentenced to imprisonment for three years. He now seeks leave to appeal against both conviction and sentence.

2. The prosecution's case is that on the 27th June 1990 outside shop number 8 in Block 6 of Tsz Wan Shan Estate, the applicant intentionally committed an act of assault upon the deceased, Chan Kam-wing, which assault caused the deceased to fall, resulting in death from fatal injuries to the head. The deceased died in the early hours of the following day.

3. The first and main witness for the prosecution was Ng Kwai-ngan.

4. On the day in question, the applicant, an old lady, Ng Kwai-ngan, and two old men, Cheung Wo and Bah Kwang-khoi, were playing mahjong at shop number 8. The deceased came into the shop and criticised the applicant's skills. A quarrel ensued, and Ng Kwai-ngan told them not to quarrel and to leave the shop. She said she saw the applicant's right hand move. Her evidence on this critical point was not entirely clear. The learned trial judge in his summing-up to the jury, summarised and commented upon her evidence in these terms:

    "She saw the Defendant raise his hand and the Defendant went towards the deceased and when the Defendant went forward, she said she could see the deceased no more. She said she saw the Defendant push the deceased but did not see where it actually landed on the deceased. She did not know if the Defendant actually touched the deceased.

    Members of the jury, you have also seen her demonstration of the hand movements of the Defendant which she said she saw when the Defendant was outside the shop. You will note that it was a hand pushing forward movement and this is what she described as the Defendant raising his hand. It is for you to decide whether, having regard to her disability in her hearing and eyesight and her memory, to accept her evidence and what weight you will put on her evidence."

5. Earlier the judge reminded the jury that Ng Kwai-ngan's eyesight was not good; indeed she had lost the sight of one eye. She was also hard of hearing and had to use a hearing aid. Her memory was not good. She was 70 years of age.

6. The old man, Cheung Wo, did not take the matter much further. His evidence was that when told to leave the shop, the deceased walked out, followed some seconds later by the applicant. Then he heard the sound of a person falling. He went out and saw the deceased lying unconscious on the ground.

7. Bah Kwong-khoi, the other old man, said it was a heated quarrel, and both the deceased and the applicant were very excited.

8. The judge defined assault as an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence. He further explained to the jury it is not necessary that there should be physical contact between the two persons.

9. He then went on to say:

    "Members of the jury, if you accept the evidence of PW3 (Ng Kwai-ngan) the old lady, and come to the conclusion that the raising of his hand by the Defendant in the manner as demonstrated by PW3 (Ng Kwai-ngan) was some movement towards the deceased which caused the deceased to apprehend that the Defendant was about to strike him, that act of the Defendant was an unlawful act of assault committed by the Defendant towards the deceased. So whether you come to that conclusion or not is also entirely for you.

    Whether it actually landed on the deceased is immaterial."

And -

    "If you come to the conclusion that the act was dangerous, the next consideration is whether the act of assault substantially caused the death of the deceased. This is a question of causation and if the assault substantially caused the death of the deceased, it does not matter that there was no impact by the Defendant on the body of the deceased.

    If the assault caused the deceased to fall and sustain the fatal injuries, whether because of impact by the Defendant's hand on the deceased or the deceased fell because of his apprehension of being physically struck by the Defendant, the act of assault by the Defendant substantially caused the death of the deceased."

10. Noting that there was no evidence of how the deceased fell, the judge directed the jury in the following terms:

    "However, there is circumstantial evidence. It is open to you to infer from such circumstantial evidence that the deceased fell because of impact on him by the Defendant or due to. the deceased's apprehension of physical force on him by the Defendant.

    Now, whether you draw such inference or not is entirely for you and I remind you that you will only draw such inference if that is the only reasonable and logical inference that may be drawn from the circumstantial evidence but not otherwise.

    And for this purpose, you may consider the following circumstantial evidence: - (1) there was a heated argument between the defendant and the deceased in the shop which nearly resulted in a fight between them; (2) the Defendant and the deceased were both excited and they quarrelled all the way as they left the shop and there was exchange of abuses; (3) they were told to leave the shop if they wanted to have a fight; (4) the deceased left, followed by the Defendant or they both left at almost the same time; (5) the defendant had taken off his garment when he played mahjong but when he ran out of the shop, he was in a rage and he did not bother to put back his garment; (6) the proximity of time between the time the Defendant went out and the hearing of the sound of a person falling down by PW4, and that time gap was just ten seconds, and immediately after hearing that CHEUNG Wo went out of the shop, he saw the deceased lying injured on the ground and the Defendant was there.

    Prior to that the Defendant was seen raising hand and he had been seen that he went towards deceased; (8) the injury on the upper lip of deceased which Dr. Yu said was very likely to been caused by another impact of a blunt object rather than the fall; (9) there is no evidence of the deceased having collapsed and lost his consciousness before he fell to the ground."

    Finally, the judge told the jury:

    "Members of the jury, if you are satisfied beyond reasonable doubt that the Defendant had committed the unlawful act of assault and are satisfied beyond reasonable doubt that that act a dangerous act in the sense I mentioned to you earlier and the Defendant's unlawful and dangerous act substantially caused the death of the deceased, you will find the Defendant guilty of the offence of manslaughter as charged against him."

11. There are nine grounds in the Amended Grounds of Appeal. Upon our indication that if in our view the application could be disposed of on the first two grounds, it would not be necessary for us to consider the remaining grounds, we heard counsel on the first two grounds of appeal.

12. Ground 1 alleges that the learned trial judge erred in law in ruling there was a case to answer. Ground 2 alleges that Ng Kwai-ngan's evidence was so intrinsically weak and unreliable that the conviction is unsafe and unsatisfactory.

13. The applicant gave no evidence nor did he call any witnesses in his own behalf.The defence as put in cross-examination was that the applicant did not cause the death of the deceased.

14. At the hearing of this application, counsel for the applicant read out numerous passages of Ng Kwai-ngan's evidence to demonstrate its unreliability. That she was doing her best in her endeavour to recollect those events is not doubted. Nevertheless, he contended, there were too many inconsistencies and weaknesses for her evidence to be credible. The old lady's answers under re-examination are crucial. It is here necessary to reproduce that part of the transcript (at pp 68-69) in full:

"Q. Madam, could you just tell us, or demonstrate for us, what you mean when you say that you saw the defendant pushed the deceased.

(Witness stands up and demonstrates.)

A. He raised his hand and pushed in this way. In fact I do not know whether he actually pushed him or not.

Q. Well, Madam, would you come here so the jury can see you.

(Witness came away from the witness-box.)

Q. Pretend for one moment you are the defendant and Madam Interpreter is the deceased. You demonstrate what you saw.

MRS. PANESAR: My Lord, with respect, may I interpose. I do apologize to my learned friend and to the court.

    If you are going to have a demonstration at all, perhaps she could be asked firstly to indicate, to get the positions right, with regard to where she was sitting inside the shop so that the jury can have a proper perspective rather than just from any angle.

MR. DINAN: My Lord, I'll cover that later, if that is necessary. May she first of all be allowed to answer this question?

COURT: Yes.

Q. Could you please demonstrate what you saw.

A. I only saw him act in this way. (Witness makes a gesture of pushing, but her hand did not touch the Interpreter.) I do not know whether he touched him or not.

Q. Madam, the Interpreter is the deceased person; right? Do you understand? And you are the defendant.

A. Yes.

A. How close was the deceased (in other words the Interpreter) at the time.

A. Further away.

(Madam Interpreter steps backward.)

A. Further away.

(Madam Interpreter continues to step backward.)

A. Yes, about that distance.

(The two demonstrators are about five to six feet apart,, facing each other.)

MR. DINAN: Go back to her and ask her what did - she see the defendant do, please.

(Madam Interpreter puts the counsel's question to the witness.)

A. (Makes a gesture of pushing). He acted in this way. I could not see 'Lau So' at all ... I could only see a small part of him.

Q. Madam, is that what you call 'a push'?

A. Well, he raised his hand, I did not know if he actually pushed him.

Q. Sit down please. When you told the court that you saw the defendant pushed the deceased, and the deceased fell down, what did you mean by that?

A. My view was blocked by something. I only the act of pushing, but I did not see whether he fell or not.

Q. So why did you tell the court earlier on that you had seen the deceased fall to the ground?

A. I could not see him fall because my view was blocked, and that's why I say I do not know. My view was blocked."

15. We are satisfied that there was no nexus whatsoever between the applicant's act of pushing and the deceased's falling. The learned judge did in his summing-up tell the jury to consider whether the raising of the hand of the applicant in the manner demonstrated by Ng Kwai-ngan "was some movement towards the deceased which caused the deceased to apprehend that the Defendant was about to strike him, that act of the Defendant was an unlawful act of assault committed by the Defendant towards the deceased". However, this direction falls short of telling the jury that there was no evidence to connect the applicant's act with the deceased's falling to his death. The old lady did not see the deceased fall, nor was she able to say when it was after she saw the applicant had made the pushing movement towards the deceased that the deceased was found lying on the ground. Moreover, when the applicant pushed towards the deceased, the deceased was some 5 or 6 feet away from him. Plainly the push could not have made contact with the deceased. In other words, there was no evidence of causation. There the vital link was missing. In the circumstances, we did not think it necessary to hear the third to the ninth grounds of appeal.

16. It is therefore the lacuna in the evidence - the lack of nexus - which persuades us that the conviction cannot be supported. We accordingly allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction is quashed and the sentence set aside. By consent costs of the appeal to the appellant.