HKSAR v. TSE FUK SANG

CACC 387/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 387 OF 1998

(ON APPEAL FROM HCCC NO. 456 OF 1997)

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J U D G M E N T

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Rogers J.A. (delivering the judgment of the Court) :

1. This is an application for leave to appeal against a conviction for manslaughter.

2. On 20th July 1998, the Applicant was acquitted of a charge of murder but convicted on the alternative charge of manslaughter. He was likewise acquitted on two charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 but convicted of the alternative counts of wounding contrary to section 19 of the Ordinance.

3. The Applicant was the 1st Defendant at the trial. The 2nd Defendant was charged with the same offences as the 1st Defendant and acquitted of all charges.

4. The charges arose in the following way. At about 6 p.m. on 28th July 1997, the Applicant and the 2nd Defendant at the trial had been gambling at the Wah Lee Store, Hang Tau Tsuen, Sheung Shui in the New Territories. That Store was run by members of the Kong family and appears to have been a local centre which had been frequented by the Applicant, amongst others, for the purposes of gambling.

5. As a result of a quarrel with Kong Tao-keung, one of the Kong brothers, the Applicant had been pushed to the ground. It is said that he was told that he was no longer welcome to gamble at the Wah Lee Store. Although it was the Applicant's evidence that he was not upset or affronted by the incident, it was the prosecution case that he was.

6. After the incident, the Applicant and the 2nd Defendant had departed from the Wah Lee Store. The 2nd Defendant went home to dinner. The Applicant drove in to Sheung Shui to have dinner at a restaurant. It was the Applicant's case that at the restaurant he happened to see an acquaintance, Ah Man, who invited him to sit and have dinner with him. Ah Man was in the company of a number of men who have never been identified. According to the Applicant, he mentioned the incident at the Wah Lee Store to Ah Man who suggested that because he had good relations with one of the Kong brothers, they should return to the Wah Lee Store to seek a reconciliation with the Kong brothers. The men who were having dinner with Ah Man would accompany them and they would all take part in the gambling at the Store. The Applicant said that this would bring increased business to the Wah Lee Store and would therefore be of advantage to the Kong brothers.

7. Thereafter, the Applicant drove his car with a number of the men from the restaurant and Ah Man drove his car back with the remainder of the group towards the Wah Lee Store and on the way, they met the 2nd Defendant who was walking back.

8. There is no dispute that upon reaching the vicinity of the Wah Lee Store, the Applicant went to the entrance of the Store and called on Kong Tao-keung to come out. The Applicant concedes that at the time he was holding a torch. He says that he returned to the car to replace his torch. The Applicant denies that he was holding any weapon. Upon the Applicant's version of events, Kong Tao-keung rushed out of the Store towards the Applicant with two choppers in his hands and he was followed by others with weapons. The Applicant says that he ran away and was chased and that he was chopped on the body from behind and fell to the ground and was only rescued by the 2nd Defendant. The wounds which the Applicant suffered were at the back of his body and limbs.

9. The 2nd Defendant's evidence is consistent with the Applicant's evidence and to much the same effect. There was one further witness, who might be said not to be influenced by the Kong brothers, who indicated that Kong Tao-keung had come out of the Store brandishing the weapons.

10. That evidence, however, was in conflict to the Kongs' evidence that in effect they were set upon by the group which had travelled in the two cars who had come armed with baseball bats and clubs. The evidence of the prosecution witnesses against the applicant is summarised by the Judge in the summing-up as that the Applicant had a baseball bat as well as perhaps a torch. There was direct evidence from Kong To-chuen that he had seen the Applicant swinging the baseball bat and attacking Kong Tao-ming, the deceased victim, with it.

11. In summary, therefore, there was clearly a fight between the two camps. The verdict of the jury in acquitting the Applicant of the charge of murder and of wounding with intent but convicting him on the alternate charges is perhaps curious. If the jury had accepted the evidence of Kong To-chuen, it is surprising that a verdict of murder were not returned. However, that may be explicable as a matter of an act of clemency by the jury particularly having regard to the fact that the 2nd Defendant was acquitted of all the charges.

12. In this Court, no challenge is made to the verdict of the jury on the basis that it is irrational. What is said, however, is that the Judge below should have left the defence of self-defence to the jury. It is well settled that if a defence of self-defence arises from the facts of the case, the Judge should direct the jury as to that defence whether or not it has been raised by the Defence. A number of cases were cited to us in that respect but the proposition was not disputed as a matter of law. What is said, however, is that the matter of self-defence did not arise on the facts of the case.

13. It is clear from the Applicant's evidence that he did not admit to holding any weapon at the relevant time whether it be a baseball bat or even a torch. Neither did his co-accused give any such evidence. The defence of self-defence cannot therefore have arisen on the Applicant's own evidence since nowhere in the evidence which he gave would there be any grounds for basing a claim of self-defence. His evidence was simply that he was attacked and that he was defenceless.

14. Turning then to the question of the evidence as a whole, there was clearly indisputable evidence that choppers were involved. The injuries to the Applicant himself make that clear. But that is not sufficient. There was no evidence and certainly none was drawn to our attention that the deceased, Kong Tao-ming or the 1st witness, Kong To-chuen or Kong Mei Wan were armed. In those circumstances, the defence of self-defence does not seem to have been available on any footing. It is impossible to say that the Applicant was defending himself against these 3 persons who were the subjects of the 3 charges when there was no evidence that they or any of them were attacking the Applicant.

15. The only other point raised on behalf of the Applicant was a suggestion that the Judge may have used words which would have indicated a reversal of the onus of proof. In argument, this point was rightly not pursued as it was without foundation.

16. In the circumstances, this application is refused.