R. v. TSOI SHUN TAI and Another

IN THE COURT OF APPEAL

1995, No. 450
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. The two applicants are father and son. On 6 June 1995 before Seagroatt J and a jury, the father (D1) was convicted of murder of Ngan Siu-ming. The son (D2) was acquitted of murder but convicted of manslaughter. The father received a mandatory life sentence and the son was sentenced to 5 years imprisonment. Each applies for leave to appeal against his conviction.

The facts

2. On 26 August 1994 the father and the deceased were in their respective homes. They had a quarrel on the telephone which became abusive and then the deceased issued a challenge to the father to meet him in the ground floor lift lobby of Yee On Mansion. The father accepted the challenge and set out from his flat to meet and confront the victim. Despite being urged to the contrary, he took with him a fruit knife and was accompanied by the son and two others, one of whom was charged but acquitted. The confrontation took place in the lift lobby, a fight started in which the father stabbed the deceased five times in the stomach and killed him.

3. Both father and son were of good character. When the son accompanied father down to the lift lobby, he knew that father was to confront the deceased and he knew that he had a knife. Later, son admitted throwing punches in the fight but there was also evidence that he later tried to pull father away. The caretaker in the lift lobby testified that he saw four people around the deceased, beating him up. He said an object (the knife) was being used to jab at the deceased by the father. After the conflict had begun, the deceased's wife came down the stairs and when she shouted "What is happening to my husband?", they all ran off. In her evidence, she said that she saw the son trying to pull father away.

4. At trial, father gave evidence. He admitted killing but said that son had nothing to do with it. He advanced provocation as his defence. The son did not give evidence. His defence was that his cautioned statements were not reliable because Fujian interpreters were not used and that the use of the knife by his father was outside his contemplation and outside the scope of any joint enterprise.

The father's application

5. Mr Oderberg for the father seeks leave to argue one main ground of appeal. He submits that the issue of self-defence was raised on the evidence and that the judge failed to leave that issue to the jury.

6. It is trite law that if the issue of self-defence is raised on the evidence whether or not counsel makes any submissions upon it, the judge must leave the issue to the jury and the burden is on the Crown to disprove that the killing was in self defence. It is pertinent to note, however, that the judge wisely discussed the manner in which he intended to leave the issues to the jury with counsel before their final speeches. Counsel for the father (not Mr Oderberg) never suggested to the judge that self-defence was open and at the end of his final speech, he actually invited the jury to convict of manslaughter on the grounds of provocation. A submission which is quite inconsistent with self-defence.

7. Nevertheless, Mr Oderberg says that self-defence was raised by the father in passages in the evidence referred to by the judge in his summing-up. These are as follows.

(1) In a statement under caution found at 23D-I, the father said:

"It was because on the phone, the deceased was very angry; and he asked me to meet him outside for a settlement talk. He asked me why I scolded him. I am 50-odd years old. Due to my old age, I surely was no match for him in a fight. Therefore, I brought along a knife and I would beat him with the knife if NGAN Siu-ming hit me. I really had never thought of killing him with a knife."

Also at 23J-L:

"He punched me twice. I then dodged and then took out the knife to stab him. I did not know how many times I had stabbed him and, all of a sudden, my son pulled my arm from behind and asked me to go."

(2) In his evidence to the jury, the father said (p.24P-25I):

"At that time I was extremely angry. I was very impulsive. I did not mean to go down there with the fruit knife to stab him to death. My intention was to explain to him. If he did not listen and beat me up, the knife would be used to bluff him, to terrify him. I went downstairs and straight on to Yee On Mansions. He was already in the middle of the entrance. He's taller and stouter and stronger than I. I went up to him. Although I had the knife, I did not produce it. When I reached him, I got hold of his two hands. I said 'My friend, I am trying to explain to you. I really did not scold you. Listen to my explanation.' "

He continued that the deceased was abusive and, not prepared to listen to any explanation,

"He punched me on my cheek forcibly which resulted in my denture falling out of my jaw. After I was punched once, I became exceedingly angry. I produced my fruit knife. He said 'So you really mean to use the knife or to threaten me?' Took it from my waist-band.' And then he said this - and you may want to - or you may recall this very clearly - I said to him 'If you are going to assault me any more, do not blame me for using a knife in the fight.' "

Further at 25L-O, he said:

"I turned my head round to look through the entrance of the building into the street. Then he gave me a strong punch on the back of the head. It caused momentary confusion. I just fought back crazily and frantically. It was a chaotic fight with him. He struck me. I retaliated. I just do not know how the fight developed."

8. It is lawful to use such force as is reasonably necessary in all the circumstances to defend oneself. The classic pronouncement is to be found in Palmer v R [1971] AC 814 PC per Lord Morrison of Borth-y-Gest:

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances."

But what are the circumstances here? He quarrelled with the deceased, accepted his challenge, and went to meet him armed with a knife and accompanied by three others. The confrontation took place, the quarrel - on the father's account - led to punches being thrown by the deceased which were answered by the applicant drawing his knife and stabbing "frantically". On this evidence, could the jury have come to the conclusion that there was an issue on self-defence which the Crown were required to disprove? The answer is clear. There was never a necessity for the applicant to meet the victim at all nor to confront him with the knife. No properly directed and reasonable jury could have found that his use of the knife in the circumstances was reasonable, necessary or proportional. He did not misconceive the nature of the attack with fists and he was accompanied and supported by others. With respect to the arguments which have been advanced to say in these circumstances that the jury had to consider self-defence is neither the law nor common sense.

9. It is not necessary to examine the other grounds advanced by the father. There is no foundation for any argument upon them.

10. The father's application for leave to appeal against conviction is refused.

The son's application on conviction

11. Mr Oderberg submits that the judge erred in failing to direct the jury that if they regarded it as possible that the son became involved in the fight in the honest belief that he was defending his father from serious injury or death, then he was entitled to be acquitted altogether. Having pointed to the passages in the evidence which support the contention that the son was pulling the father away from the fight, he submits that there was a possibility that he went in to protect his father from attack or merely to stop the fight. Further, on two occasions in cautioned statements the son said that he went in to stop his father and the deceased from fighting.

12. However, in the last statement he added (p.95):

"At that time I saw that (my) Papa ... was having a fight with (a) man at the lobby of Yee On Building. I then went in to give a hand to my Papa. Originally, I intended to ask Papa not to fight. However, the man gave me several punches as well. So I also gave the man several punches."

He continued that he remembered giving the deceased one punch on the face but he could not remember clearly on which parts of his body his other punches landed.

13. The answer to this submission is that if the jury concluded on all the evidence that it was reasonably possible that the son only participated to protect father by intervening to separate the combatants and to pull father away, then they could not have been sure that he was part of a joint enterprise to do any harm and would have acquitted.

14. No arguable point is raised. The son's application for leave to appeal against conviction is refused.

The son's application on sentence

15. The son was convicted on the basis of proposition 2 which was left to the jury in writing. It reads:

"If he was part of a joint enterprise to do some harm, less than serious physical harm, and if you conclude that there is a reasonable possibility that he did not even contemplate the risk of serious physical harm and that he thought the knife would be used to do not more than frighten the deceased, then not guilty of murder but guilty of manslaughter."(p.34 Q-35B)

He was therefore to be sentenced on the basis of the jury's verdict that he joined in the fight with the intention of doing some injury but not serious injury knowing that his father had the knife but contemplating that he would not use it to inflict serious injury but would only use it to threaten. Mr Oderberg submits that this coupled with:

(a) his good character;

(b) his age of 23 years;

(c) the fact that the offence was brought about by father's anger;

(d) that he urged his father not to take the knife; and

(e) that after the attack he tried to drag his father away,

indicate that 5 years was manifestly excessive. Undoubtedly, the son's involvement was a serious matter. He involved himself knowing that father had a knife. But giving proper weight to the jury's verdict, the full circumstances of the offence and the personal circumstances of the offender, we accept that the sentence was clearly too high. In the circumstances we grant the application, treat the hearing as the appeal and substitute for the sentence of 5 years one of 3 years imprisonment.