THE QUEEN v. WONG YIU LUN

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JUDGMENT

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Fuad, V.-P. (delivering the judgment of the Court):

1. The trial of the applicant, Wong Yiu Lun, on an indictment for murder took place over 20 days in November and December 1988 before Judge Sharwood, sitting as a Deputy Judge of the High Court, and a jury. On 30th December 1988 he was convicted of manslaughter and sentenced to 6 years' imprisonment on 3rd January 1989. He now seeks leave to appeal against his conviction, having given notice of abandonment of his application for leave to appeal against sentence on 19th January 1989.

2. The evidence led by the prosecution and not really in dispute established that the deceased, a young man named Ting Po had gone to see a film at the Washington Theatre with a friend on the night of 26th/27th April 1986. In the early hours of 27th April he was attacked outside the side entrance of the Washington Theatre, at the corner of Ning Po Street and Parkes Street by a group of men. He fell to the ground. He got up and ran. He was chased and fell again at the intersection of Temple Street and Nanking Street. Some of the men chasing him, at least 10 in number, were armed with folding chairs and one with a piece of iron pipe. These weapons were used on the deceased throughout the attack. He was also struck with fists and kicked while he lay on the ground. He was covered in blood and did not get up again.

3. When the police came to the scene, attempts were made to staunch the deceased's wounds while he lay there apparently unconscious. He was taken to the Queen Elizabeth Hospital and treated, but died of his injuries later that morning.

4. The post-mortem examination of the deceased's body showed "literally dozens" of recent lacerations, abrasions and bruises. The cause of death was a fracture of the skull and brain injury.

5. The applicant was arrested shortly after midnight on 13th June 1986. He said nothing when cautioned on his arrest. Starting at about 3:45 a.m. that morning, the applicant made a statement to Detective Senior Inspector Fan Shek Ming. The officer told him that he had reason to believe that he had taken part in assaulting Ting Po at about 1:40 a.m. on 27th April 1986 together with one named man and more than 10 other unnamed men, thereby causing his death. The applicant made a statement after caution and answered questions put to him by the Detective Senior Inspector, all in his own handwriting. The statement and the questions and answers were before the jury.

6. In this statement, the applicant wrote:

"That night, I, together with Ah Hau, Ah Keung, Nai Tsui, Ah Fai, Chi Wai and ten-plus other persons played ball games in Tai Wah. A brother came up and said to us that there was something happening down below, and (asked) (us) to go down at once. We then went down to Washington Theatre. Having got there, Chi Wai asked us to stand at the entrance, and talked about hitting a person later on, and the person was seeing (a) movie. Shortly afterwards there were many brothers - about 30 to 40 people. Later, the movie was over. I saw a group of brothers going over to hit a person. Other brothers took folding stools. I also took a folding stool (and) chased that person. Having run for a short while, I hit him on the back twice with the stool. The man then ran off.  I saw there was blood on his back. We chased until (we) got to Temple Street. I hit the person twice with the stool. That person fell on the ground. I threw away the stool and then ran away. Later, (I) came to know that that person died. I only hit (him) several times."

 

7. In answer to questions, the applicant recorded inter alia, that he had not known the person who was assaulted and that he and some of the others who had taken part in the assault had picked up folding stools from a tea stall at the entrance of the Washington Theatre. The following questions and answers are then recorded:

And:

8. When he was formally charged with murder on the following day by another Detective Chief Inspector, after caution, the applicant said:

"I understand. I only hit him with (a) folding stool and had no intention to hit him to death. In supplement to what I have said, I only hit him several times."

 

9. As the judge made absolutely clear to the jury, this was the only evidence against the applicant. The applicant elected not to give evidence himself at the trial despite the fact that Counsel then acting for him, (not Mr. Sedgwick, Q.C. who represents him before us), no doubt on instructions, conducted the defence in a manner that caused the judge to say this to the jury during his summing up:

"Gentlemen of the jury, you may think that a great many very ugly allegations had been made in this case against the police, allegations of threats, assaults, fabrications, lies and a conspiracy to pervert the course of justice. Allegations, members of the jury are not evidence. Anyone can make allegations, it is very easy. But evidence is something else. There is no evidence whatsoever to support these allegations, none ......."

 

To this no exception has, or could, be taken.

 

The sole ground of appeal is put in this way:

 

"Having, at p.66 of the summing up, expressed forcibly the view that 'those two took part in the final phase of the attack as the deceased lay helpless at the intersection of Nanking and Temple Street had the unmistakable intention to kill or at least cause really serious injury ...’, the learned Judge erred in law in failing to direct the jury that if the Applicant was not a party to such a common design to kill or to cause really serious injury and that death resulted from the implementation of that common design by those with such intention, then in law he could not be convicted of the manslaughter of the deceased."

 

10. Mr. Sedgwick acknowledges that this is a novel ground and that there is no authority for the proposition he advances, which seems to amount to this: if a group of men, sharing a common design to kill another (or to cause him grievous bodily harm) carries out their common purpose and their victim dies, each will be guilty of murder, but a member of that group who takes part in the assault without sharing the common purpose of the group (to kill or cause grevious bodily harm) will be guilty only of some form of assault and cannot be guilty of manslaughter whatever he himself might have intended or contemplated. Here it is not a matter of the group starting with a common intention short of serious injury but with one member exceeding the common intention. It is the converse.

11. Before addressing this proposition, it is necessary to review how the judge dealt with the matter of joint enterprise in the summing up as a whole. Very early on in his summing up (p.4) he told the jury:

" Members of the jury, where two or more persons embark on a joint enterprise, each is liable for the acts of the others done in pursuance of that joint enterprise; even if unusual or unforeseen consequences arise from the execution of the agreed joint enterprise, all are liable for those consequences. But if one of them departs completely from what has been expressly or tacitly agreed as part of the joint enterprise, the others are not liable for the consequences of that unauthorised act.

 

        Therefore, before you can convict the accused so as to make him liable for the acts of the others, you must be satisfied, first, that he agreed with them to attack Ting Po, the deceased, or had a common purpose with them to attack him; and, secondly, that what the others did was part of what had been agreed or of that common purpose. If you conclude that what the others did departed or may have departed completely from what was agreed or from that common purpose, then you cannot convict the accused as a result of what the others did."

 

It will be seen that the first paragraph is a close paraphrase of paragraph 20-16c of the 43rd Edition of ARCHBOLD p.1931 where the editors cite as authority, inter alia, R. v. Anderson and Morris (1966) 50 Cr.App.R. 216 and R. v. Lovesey and Peterson (1969) 53 Cr.App.R. 461.

Later, (pp.6-8) the judge said:

 

"    If you were sure, therefore, that there was a joint enterprise, that the accused was part of this joint enterprise, that he and others agreed to take part in the attack, or had a common purpose to do so, that he wielded a number of blows himself with a folding stool and that what the others did, did not depart or possibly depart from what had been agreed or from the common purpose, then he would be liable for all the blows delivered during the attack, including the fatal blow."

 

12. The portion of the summing up complained of is to be found, in context, in the following passage (pp.66-67) towards the end of the summing up and after the judge had told the jury about unanimous and majority verdicts:

"     If you find him not guilty of murder, there are various possibilities. The first one is you will find him not guilty of murder because you are not sure that you can rely upon his admissions because you are not sure that they are true. If this is the case, no verdict is required on manslaughter because manslaughter would simply not arise. If you cannot rely upon his admissions for one purpose, you certainly cannot rely on them for another. So to repeat, if you feel that you cannot rely upon the admissions, your verdict would be not guilty of murder, and no other verdict would be required.

        The second possibility is if you did find him not guilty of murder but you are sure that he took part in the attack. That would happen if you accepted his admissions as true, and you were sure that they were true, but you felt from all the circumstances and all the evidence that you are not sure that he intended to kill or to cause really serious injury.

 

        Members of the jury, I have already said that you may think that many who took part in this attack intended to kill or at the least to cause really serious injury. I say it again. You may think that those who took part in the final phase of the attack as the deceased lay helpless at the intersection of Nanking and Temple Street had the unmistakabl intention to kill or at least cause really serious injury, but it is a matter for you.

 

        If you were sure that he took part in the attack but not sure that he intended to kill or cause really serious injury, you must find him not guilty of murder. In those circumstances you could find him guilty of manslaughter, if you were sure that the killing was unlawful and that any sober or reasonable person would inevitably have realised in all the circumstances that the person attacked would be subjected to the risk of some harm, albeit not serious harm, and whether the accused realised this or not. You would find him not guilty of manslaughter if you were not sure that any sober or reasonable person would realise this." (Emphasis added]

 

13. Following on submissions of counsel at the conclusion of the summing up the trial judge further directed the jury on the issue of joint entrerprise reiterating his earlier directions. In the course of those further directions he said:

"        In assessing - if you are sure of all this in relation to the accused - and, of course, you will only be sure of all this if you accept the admissions that he has made, I have told you all about that - if you come to the view that you do accept his admissions, and you are sure that they are true, that you are sure that he was part of a group, you are sure that there was a common enterprise and that he participated, then you could say that he was responsible for the acts of the others provided those acts did not fall beyond the contemplation of the others, or the agreement.

 

        If you come to the view that he was responsible for the acts of the others, in assessing his intention you would draw such inferences from those acts as you thought proper, and if the acts of the others led you to infer that a certain intention was apparent from those acts, then you could attribute that intention to the accused because of his participation in the joint enterprise, remembering, of course, that manslaughter is the unlawful killing of another without the intention to kill or cause grevious bodily harm."

 

14. Both Counsel for the prosecution and for the defence expressed satisfaction with the further directions.

15. We were referred by Crown Counsel to Chan Wing-Siu v. The Queen [1985] AC 168, a decision of the Privy Council on appeal from Hong Kong. There the appellants went to a flat armed with knives to rob the occupants. One of them fatally stabbed the man of the house. The effect of the trial judge's direction on the issue of joint enterprise was that any member of the gang proved to have had in contemplation that a knife might be used on the occasion by one of his co-adventurers with the intention of inflicting serious bodily harm would be guilty of murder. Sir Robin Cooke, giving the judgment of the Board, said at p.175:

"        In considering that argument it should first be recalled that a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

 

        That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.

 

16. Mr. Sedgwick submits that Chan Siu Ming has no application to this instant case because of his contention that the applicant here was someone who was not an adherent to the common design from the start, from which follows that there should have been an explicit direction on that which was contemplated by this particular individual.

17. Mr. McWalters for the Crown suggests that the non-reference to the applicant's "contemplation" was a misdirection but equally was one which was favourable to the applicant.

18. But that which was the intention of the applicant was to be inferred from his actions taking place in the context of the whole of the incident.

19. That portion of the answer to the charge where the applicant stated that he did not intend to "hit him to death" was again expressly drawn to the attention of the jury in a passage towards the conclusion of the summing up. While the word "contemplation" was not used, nevertheless it was left to the jury to infer, if they so thought fit, from the evidence before them what his actual intention was.

20. But, and we make no excuse for repeating it, the trial judge had directed the jury, in the context of the passage complained of by Mr. Sedgwick that:

        If you were sure that he took part in the attack but not sure that he intended to kill or cause really serious injury, you must find him not guilty of murder. In those circumstances you could find him guilty of manslaughter, if you were sure that the killing was unlawful and that any sober or reasonable person would inevitably have realised in all the circumstances that the person attacked would be subjected to the risk of some harm, albeit not serious harm, and whether the accused realised this or not. You would find him not guilty of manslaughter if you were not sure that any sober or reasonable person would realise this."

 

21. It was fully open to the jury to find that the killing was unlawful. It was fully open to them to find that any sober and reasonable person would - where he willingly participated in an attack carried out by a group of persons armed with stools, and one with an iron bar, which involved not a single blow but a series of blows inflicted by those persons during a chase and delivered in the course of and at the conclusion of that chase, where that person was himself armed with stool and did himself inflict blows upon the deceased throughout the course of the whole incident - realise that the person attacked would be subjected to the inevitable risk of harm of some nature.

22. If the person attacked dies then if the jury accepts, as they clearly did here, that the applicant, being a sober and reasonable person, must have had the realisation indicated, they can properly convict him, not of mere assault but of manslaughter.

23. Mr. Sedgwick's proposition, in our respectful view, is misconceived on the authorities as we understand them. In the circumstances here the applicant was responsible for the force used by the others as well as for the force used by him and will not be absolved from liability for manslaughter simply because others in the group might have had the intent necessary to convict them of murder.

24. The conviction is unassailable and the application for leave to appeal against conviction is dismissed.