THE QUEEN v. LAI CHI HONG

IN THE COURT OF APPEAL

1986, No. 493
(Criminal)

BETWEEN

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JUDGMENT

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Silke, J.A.:

1. Lai Chi Hong – “the Applicant" - and Lee Fu Wai - "D2” - jointly faced trial before Garcia J., and a jury, upon an indictment which had, as its first count: murder and the dead man was named as Fung Yiu Fai; as its second: wounding with intent, the person named being Wong Wai Keung; as its third: wounding with intent, the person named being Lam Kin Keung. Individually each defendant was charged with membership of a triad society.

2. The Applicant was convicted of murder and of both the wounding counts and the membership count. He was sentenced to death, then to 10 years' imprisonment, 10 years' imprisonment and 18 months' imprisonment, all concurrent, respectively.

3. D2 was acquitted on all counts, a directed verdict being entered on the membership count.

4. The Applicant now appeals against the convictions and his sentence.

Background

5. On the 13th April 1986 at a small park in Wanchai, near the flyover leading to the Cross Harbour Tunnel, there was a gathering of members of the Luen Lok Tong Triad Society - described, for short, as "Lo Tan”. This group was disturbed by people they considered to be members of the Wo Hop To Triad Society - "Hop To”. There was a quarrel. The Hop To members departed, returned with reinforcements and the continuing quarrel developed into a fight. A Lo Tan member, identified as “Ah Kau”, was injured by a stone and was sent to hospital.

6. In the early hours of the 14th of April, there was a meeting, attended by the Applicant, of some of the persons concerned in the earlier fight. The meeting was hot tempered and dissatisfaction was expressed with the actions of the persons described as the “Hop To boys".

7. One of those present, Law Wai Yip, who gave evidence in receipt of an immunity, was treated as hostile in the course of the trial. He was cross-examined by counsel then appearing for the Crown. He had said in a previous statement, which he finally adopted, that one of the persons at that meeting said:

“Unless Ah Kau is all right or otherwise (we) would fight to death with that gang of Hop To boys”

Law could not identify the speaker and there was no direct evidence that the Applicant overheard that promise.

8. It was the Applicant's case at trial that he was present merely as a mediator and to assist in the seeking of compensation. He was a person who was acquainted with both the Lo Tan group and the Hop To boys though he was not himself a triad member. This was in contrast with a cautioned statement he made to the police with which we shall deal later.

9. To continue the sequence of events: following that meeting there were attempts made to find the Hop To boys. The Applicant participated in those attempts and drove around in a yellow van with a person named as “Ah Ping”, another person “Ah Chu” and one "Ah Chung”. Initially, these attempts were unsuccessful. In the early morning of the 14th of April, the Applicant suggested that a visit be paid to the New Coco Association in Johnston Road in Wanchai. That Association was a billiard and snooker saloon and the Applicant advised his companions that it was possible some Hop To boys might be found there.

10. They drove to the billiard saloon and the Applicant and Ah Chu left the van, went up to the Association, looked around and returned to the van. A little later two others of the group went up, also looked around and also returned to the van. Later still, two more, inc1uding Ah Ping, went up to the saloon, saw some Hop To boys there and returned. Ah Ping then went to the phone and, to the Applicant's knowledge, requested assistance.

11. Before the third visit there had been present in the billiard saloon Wong Wai Keung, who stated himself to be a “14K” member, Lam Kin Keung of the Wo Hop To - both of them as attendants there - Yim Siu Lam who was also a Wo Hop To and Fung Yiu Fai, the deceased, said to be a member of Wo Hop To. He came after the others.

12. In response to the telephone call a green car arrived at the scene and parked in a side lane. Six men got out of it and, to the Applicant1s knowledge, went to its boot, opened it and took “something” out. The yellow van moved around and parked in Johnston Road. The green car men went up to the billiard saloon and very shortly ran down again. They boarded their car and left the scene. The Applicant, who had been waiting in the yellow van with Ah Ping and others, went off -in it. He said he made no enquiries as to what had happened in the billiard saloon.

13. What had happened was that men had rushed in, armed with knives and choppers, chased both Hong and Lam, wounded them and delivered slash wounds to Fung from which he died. Fung was cut on the head, neck, back, arms and hands; Wong had a 6cm. cut wound on the back of his head and a 8cm. cut wound on the left side of his head; Lam had a 4cm. cut wound over the left top side of his head. The incident took but a few moments.

14. A number of people, including the Applicant, were arrested by the police - his arrest taking place on the 15th of April. At 10:00 a.m. on that day, he made a statement under caution in which he referred to the incident in the park and stated those present to be his “band of brothers". The statement itself used the single word “brothers” but it was made clear in the course of the trial that where that word appeared, the correct translation should have been "band of brothers”. He had been told about this not being himself present. He described himself as on the evening of the 13th being called by Ah Ping from his work as a vehicle parker in a construction site in Percival Street. Ah Ping was driving a yellow van and was with Ah Chu and Ah Chung. The Applicant made no mention of any prior meeting in a flat.

15. He went on that he was asked by Ah Ping to go with them to look for the party of Hop To. He agreed but for the purpose of seeking compensation. At about 3:00, o'clock in the morning he thought of the New Coco Billiard Room. He told Ah Ping to drive there. He said that Ah Chu and himself got out and went up to the saloon - in his evidence at trial he described himse1f as being "directed” by Ah Ping to take this course. He described the second visit to the saloon as being made by Ah Ping and Ah Chung who, upon their return, said that a party of Hop To were there. He made no mention of a middle visit. Ah Ping went to the phone and the Applicant said he knew Ah Ping was trying to get people “to give assistance”. He described the arrival of a green private car. The Applicant said he saw four men get off the car, open the boot and take “something” out; Ah Chung and Ah Chu, under the directions of Ah Ping, got off the yellow van into Johnston Road, stopping near the billiard saloon. The Applicant said he saw Ah Chu, Ah Chung and the four persons walk slowly up to the billiard saloon. A little later, he saw the whole party rush down and go to the lane where the green car was parked. He lost sight of them. The yellow van left.

16. It will be seen from the above that the major part of his statement to the police was adopted by him at trial.

17. But he was asked certain questions when the main statement had been completed. In answer to one he was recorded as saying, that when he referred to "band of brothers” he meant "triad brothers”. More importantly when asked:

“Q. Ah Ping asked you to go together with him to look for the party of 'Hop To'. What is the purpose of looking for them?"

His reply was recorded as:

“A. To be a t them up.”

Finally when he was asked could he see what things were taken out of the boot, he replied:

'A. At that time, it was very dark in the side street where the car stopped. I could not see the faces of these four persons and I also could not see what things they took.”

There was no evidence as to who inflicted what blow upon whom.

18. It was the Crown's case that the incident in the billiard saloon on the morning of the 14th was part of a common design, the inflicting of at the least really serious bodily harm upon Hop To members found there. It was a revenge triad attack and the Applicant was a participant in it having knowledge of the prior background, assisting in the location of the Hop To boys - and to beat them up - going into the billiard saloon for identification purposes, knowing of the call for assistance and knowing that "something" was taken out of the boot of the green car. He must, it is said, have appreciated, in the context, that the "something" were weapons.

19. The Applicant's statement was admitted after a voir dire and its truth was vigorously contested at trial. Allegations were made of assaults and of improper pressure. In the light of the Applicant's own evidence, the attempt to discredit the statement was directed mainly at those passages in which the Applicant referred to "triad brothers" and to the search for the Hop To boys being for the purpose of “beating them up”.

20. Mr. Poll suggests that the Crown's evidence was very weak, but we are satisfied that, on the evidence as a whole, that the jury was entitled to come to the conclusions they did.

21. At trial, there was no reference to manslaughter. Mr. Poll, who appeared for the Applicant both here and below, did not address the jury upon it nor did he ask the trial judge to direct on manslaughter. He quite frankly says that he ran his case on the basis of the Applicant's simply being there to assist in the seeking of compensation for the injury to Ah Kau, thus looking for a not guilty verdict.

22. Complaint is now made that the trial judge, there being a duty upon a judge to put all possible defences to a jury which emerge from the evidence even if they were not raised by the defence, should have directed on manslaughter. Mr. Poll submits that the jury, were they in doubt about the nature of the joint enterprise to which the Applicant attached himself and of his knowledge of or of his agreement to or participation in the events that took place, could have considered an alternative verdict to murder.

23. He further submits that the judge, in his directions on intention failed to:

"sufficiently differentiate between the evidence needed to convict a person who actually participated in an attack and a person whose role was that of an aider or abettor in a joint enterprise. In particular the learned judge failed to advise the jury that they had to find evidence of participation in a concerted design to commit a specific offence.”

24. He adds that the trial judge over emphasized, the significance of the evidence of Law Wai Yip concerning the “promise" made at the early morning meeting.

25. The fourth, fifth and sixth grounds of appeal are general ones relating to all the counts in the indictment; the fourth is that the judge failed to mention “certain significant aspects” of the defence case, the effect of which was to make the prosecution case appear stronger than it was - in particular the evidence going to show why the cautioned statement should not be relied upon; the fifth, the now popular ground, that the trial judge cross-examined the Applicant, the witness Law and a medical witness Dr. Ng in such a way as to make it appear that he was satisfied as to the guilt of the Applicant; the sixth ground, that the trial judge failed to discharge the jury, application having been made to him to do so, when a list of suspected Lo Tan triad members containing the name of the Applicant and which made reference to criminal records, including that said to attach to the Applicant, had inadvertently been placed before the jury.

26. It is the first, second and third grounds combined which have caused most concern in this appeal. The other grounds can be disposed of more speedily.

27. We do not think there to be any merit in the fourth ground. The case for the defence was squarely before the jury, there was sufficient reference to the evidence of the taking of the cautioned statement. The jury could have been under no illusions as to the allegations made by the Applicant.

On the fifth ground

28. It is correct that the judge did question the Applicant, Law and the doctor. The questions asked of the Applicant were strong ones and certainly, on paper, give the appearance of cross-examination. They totalled 41.

29. The question asked of Law, whom it must be remembered the Court had permitted to be treated as hostile, generally related to triad matters and his knowledge of them. They totalled 45.

30. The questions asked of Dr. Ng were directed mainly towards marks and abrasions found on the mouth of the Applicant and the relationship, if any, of those marks to an allegation made by the Applicant that a roll of toilet paper, containing its cardboard core, had at one stage been stuffed into his mouth by the police. These were also strenuous questions and they totalled 45. But, if there be sting in them, then we think that sting to have been removed, first by the further cross-examination by Mr. Poll and second by the further re-examination of Mr. Keane who appeared for the Crown.

31. With respect, it would have been better had the trial judge refrained from questioning those witnesses in the manner in which he did. Certainly, the questions asked of the Applicant came close to the borderline across which no trial judge should trespass. But, considered overall, we do not think the questions of the three witnesses amounted to such an intervention by the trial judge as to indicate to the jury an adverse view of the Applicant's innocence. It is not suggested that they interfered with the presentation of his case by counsel nor that they interrupted the flow of the evidence. We do not think the trial judge to have acted in a manner which warrants our interference.

On the sixth ground

32. The application to discharge the jury came about in a somewhat curious way. It had been the contention of D2 that, at the police station, he had been denied the right to an identification parade and that he had been forced into a direct confrontation with the identifying witness. The only evidence against him was identification.

33. In order to overcome these allegations, the Crown attempted to show that an order for sufficient actors had been sent out so as to provide adequate personnel for the formation of identification parades in respect of the large number of triad suspects, including the Applicant, who were then being held. They produced a list of those suspects. This carried a note of the order on its last page in, we are told, red ink. Unfortunately, that list also contained a column headed "CRO" setting out the criminal convictions of those whose names were on it. There was an entry' in respect of the Applicant in that column.

34. Neither counsel, nor the judge, noticed this CRO column. The list, in sheets, was placed before the jury immediately prior to a mid-morning adjournment. By the time the Court resumed the CRO column had come to the notice or counsel and the judge's attention was drawn to it. The question then arose as to what was to be done. The Crown suggested the list be simply withdrawn from the jury as an exhibit. Mr. Poll, not having had an opportunity to seek instructions from his clients, made a short submission stating that he was reluctant to ask for a re-trial but that he had, of course, his duty to safeguard their interests. He accepted that if the defendants gave evidence, then the matter might well resolve itself. The trial was adjourned until the afternoon to permit him to take instructions.

35. Upon resumption, Mr. Poll made the application, and this related to both the triad suspect matter and the criminal record. While, earlier in the day, Mr. Keane had indicated that, subject to full consideration or the position, he might well feel unable to oppose such an application, the application was in fact opposed.

36. The trial judge, quite rightly, held that the discharge of a jury was a matter of discretion. It had been intimated to him that the Applicant would give evidence. He refused the application, the offending exhibit was taken away from the jury and no further reference was made to it in evidence. No direction was given to them at that time.

37. How much of the sheets which comprised the list the jury had absorbed we do not know, but we must proceed upon the possibility that they had seen what was on them. The criminal record situation was made more complex by the later "out of the blue" evidence of Detective Sergeant 16971, who, when asked what he was doing at a relevant time it was suggested that he was doing matters over and beyond his duties - stated that he had been reading documents, amongst them the criminal record of the Applicant. That the Applicant was a triad suspect was associated with the evidence that he knew both sides of the feuding parties.

38. It is always a matter of difficulty for a trial judge as to whether and, if he decides to, when a direction should be given relating to matters adverse to a defendant and as to previous convictions placed inadvertently before a jury and whether he should accede to an application for discharge. Here there was necessity to direct on the previous convictions because the Crown received permission to cross-examine on that conviction when the Applicant was in the box so the matter was before the jury in any event.

39. At the conclusion of the summing up proper those directions were given. We must accept that the jury, having been so directed, took the course indicated to them by the trial judge.

40. The whole matter was an unfortunate one but in all the circumstances we cannot say that the trial judge exercised his discretion upon wrong principles. The Applicant was not forced to give evidence. Had he not done so then no doubt adequate direction on the conviction would have been given at the proper time.

41. The revelation that he was a triad suspect did not, in our judgment, given the admitted association to which we have referred, act to his detriment so as to warrant our interference.

Grounds 1- 2-3

42. Should the judge have left manslaughter to the jury and were his directions on intent proper? There is nothing in the subsidiary point of the "over emphasizing” of Law's evidence.

43. His directions upon intention start at page 398 of the summing up. Immediately prior to them, he had directed the jury in impeccable terms on the meaning of the word "murder". He went on, as to the actual attackers:

"There can be no doubt in this case that the killing of FUNG Yiu-fai was unlawful. The intention of those who perpetrated this crime may be gathered, firstly, by the type of weapons used in the attack; secondly, the injuries which those weapons would inflict and, thirdly, the part of the bodies of those victims which the weapons were used against. I think having regard to the injuries sustained by the deceased and by both WONG Wai-keung and LAM Kin-keung, you can be left in no doubt that whoever caused those injuries and the death of FUNG Yiu-fai had either intended to kill or to cause serious bodily harm to those persons whom they, that is the attackers, had come into contact with that morning in the New Coco Association."

With that direction there can be no quarrel.

44. He continued:

“There is no evidence to show by whose hand or hands the injuries to the deceased or the two other victims were caused but, in law, all those persons who shared the common intention of killing or causing serious bodily harm to those who were in the New Coca Association that morning by being present and taking part in the attack and were ready and willing either actively or by incitement or encouragement to assist each other in carrying out the common intention, if necessary, areas responsible for whatever is done by any of the parties pursuant to the common intention as if they had themselves delivered the blow or blows which caused the death of the deceased or the injuries to the other two victims. So a person or persons who is or are proved to be acting as look-outs and sharing the common intention with those who actually carried out the attacks are as guilty as if they had themselves struck the blow or blows which caused the death of the deceased and the injuries to the two other victims" (Emphasis supplied)

45. The attention of the jury was directed to the evidence of the Applicant and to the contents of his statement.

46. The trial judge concluded his summing up by saying:

"The verdicts which you have to deliver in this case are, in respect of the first defendant, guilty or not guilty of murder and guilty or not guilty of the wounding with in tent to cause grevious bodily harm …”

thus removing manslaughter, or the possibility of it, from consideration by the jury.

47. We would re-emphasize that the jury were not addressed by Mr. Poll on the question of manslaughter and that the trial judge was not requested to so direct them. We accept that there is a duty upon a trial judge to place before the jury any defence which may have properly arisen and that even though it may be a tenuous one.

48. If the joint enterprise accepted by the jury was one of the seeking of compensation then the verdict would have been one of not guilty.

49. If the jury accepted, as they clearly did by their verdict, that the common intention to which the Applicant had attached himself was that of, at the very least, causing really serious bodily injury to the Hop To boys, which injury WRS caused, then the verdicts of guilty of murder and of wounding were correct.

50. The state of the Applicant's knowledge, therefore, as it must have appeared to the jury, was that of a group, superior in numbers to the opposition, carrying “something” and going upstairs to “'beat up” the occupants of the billiard room. The question is whether, in these circumstances, a verdict of manslaughter was open to the jury.

51. The reality of the matter is that this was a revenge attack by members of one triad society upon members of a rival gang. It was the sequel to an incident in which a member of the Lo Tan triad group had been struck on the head by a stone during a fight between the two groups the day before and taken to hospital. It took place at 4 a.m., after a prolonged search and after reinforcements had been summoned. This was no spur of the moment brawl between rival groups of schoolhoys.

52. In Chan Wing Siu v. R.[1], Sir Robin Cooke, giving the judgment of the Board, said at p.882:

“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 maybe 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.”

53. Whether or not the Applicant knew that the "something" carried by the attackers were knives or choppers, we are satisfied, given the Applicant's admission that his party were looking for the party of the Hop To to beat them up, that there was no evidence before the jury from which it might have concluded that there was a reasonable possibility that the Applicant did not even contemplate the risk of really serious harm to the rivals found in the billiard room. We are further satisfied that there was evidence before the jury, upon which it could have been satisfied beyond reasonable doubt, that it was in the contemplation of the Applicant that the attack would result in the causing of grievous bodily harm. Having regard to the evidence and the realities of the situation in Hong Kong, we are satisfied that no reasonable possibility of the kind referred to by Sir Robin Cooke in-the passage set out above arose in the present case. The inference drawn by the jury was the only one, other than acquittal, open to them upon the evidence.

54. The applications for leave to appeal against the convictions are refused.

[1]  [1984] 3 All E.R. 877 (P.C.)