R. v. LAW SIU-LONG and Another

IN THE COURT OF APPEAL

1995, No.185
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicants faced one count of murder. They pleaded not guilty and after trial before Stuart Moore J. and a jury the 1st applicant was found guilty of manslaughter and the 2nd applicant was found guilty of murder. They both now appeal against those convictions.

2. On 26th May 1990, the victim, Mr. Kwok Chi-shing, was shot in the back with an arrow. After being wounded he made his way to the residence of his sister-in-law. The police and ambulance authorities were alerted and he was taken to the Prince of Wales Hospital. The arrow caused extensive internal injuries to which on 3rd September he succumbed.

3. The initial police investigation did not result in any arrest and in September 1992, some fifteen months later, the Organized Crime and Triad Bureau took over the investigation. Their inquiries revealed that an arrow such as the one used could have been made by the Yuto Precision Engineering and it was discovered that the 2nd applicant Lau Hip-shing was one of the bosses of that company and had a financial interest in it.

4. Inquiries at the company premises from the mechanics who worked there revealed that the 2nd applicant had requested that such an arrow be made telling the workers that he wanted to use it to hunt wild boar in China. The arrow removed from the victim's back was taken to the factory and the mechanics were asked to make one similar. They did so and an almost exactly similar arrow was manufactured. At trial evidence was given by a forensic scientist detailing the very close similarities between the two arrows.

5. The 2nd applicant, when interviewed about the arrow, made a statement which implicated the 1st applicant, a Detective Police Constable, who was then arrested. He, having been shown the statement of the 2nd applicant, made statements under caution.

6. At the trial the cautioned statements were challenged in voire dire proceedings. One of the statements of the 2nd applicant was ruled to be inadmissible but his other statement and the statement of the 1st applicant were ruled to be admissible.

7. The 1st applicant in his statement said:

"I did attend the scene and it was I who drove a motor cycle to take Lung Piu to shoot at Ah Ling's husband in Tai Po. But at the same time I did not know that he wanted to shoot and wound Ah Ling's husband."

He went on:

"It just happened that Lau Hip-shing asked me and Lung Piu to accompany him to Tai Po for making a revenge on her husband. At the time concerned Lau Hip-shing drove his own private car while I drove my motor-cycle with Lung Pui sitting at the back of my vehicle. On arrival at Tai Po, we awaited for a call of Ah Ling who would inform us at what time her husband would leave home so as to beat him up downstairs. However when I drove the motor-cycle to the scene and had not yet pulled it up, Lung Pui shot at a man with an arrow. Before I could see everything clearly Lung Pui said it had been done and asked me to start off the vehicle at once. Afterwards, I parted company with Lung Pui at a bus stop in Tai Po".

8. There was also evidence from a Mr. Leung Kwok-cheung, a former police officer, who said that the 1st applicant had admitted to him that he had been to Taipo to lay an ambush for somebody in order to seek revenge.

9. The evidence against the 2nd applicant other than that which indicated that he was connected with the manufacture of the arrow was contained in his statement. He said that Ah Ling, the wife of the person who was injured, had asked him to find someone to fix her husband. In his cautioned statement as read to the jury by the judge he said:

"I paid her twenty thousand dollars to settle it herself."

"Ah Ling mentioned her wish to get somebody to teach her husband a lesson again. I restated that all I could do was to pay money. On hearing that, Michael (the 1st applicant) indicated that he might try to get somebody to do it."

He went on:

"I knew that Michael contacted a gang to beat her husband up at the downstairs of the karaoke on that night. Afterwards, Ah Ling said the job was not counted as she had stated it clearly that her husband should turn out to be crippled. Therefore, she asked Michael to fix it once more."

He later went on:

"So I paid him thirty-five thousand dollars in cash. Several days later, I saw Michael drive a dark-coloured motorcycle."

"Michael asked me at the entrance of the ballroom to give him the bow which was placed at the boot of my private car and the two metal arrows which were made sharp by me at my company."

"The things were then put into the boot of Michael's motorcycle and he said he was going to do the job."

At a second interview he made the following statement:

"Ah Ling said that she would go back to Shatin herself and would call my portable telephone to inform me the whereabouts of her husband. Then I drove Lung Piu and Ah May to the vicinity of the karaoke in Tai Po to wait until her husband went off duty."

"They asked me to drive them to Tai Yuen Estate. Ah May accompanied us at that time. We waited there until dawn. Ah Ling called my portable telephone and said that her husband was going out. She asked us to be on the alert. I told what she said to Michael and Lung Piu. Immediately, Lung Piu alighted from my car and got onto Michael's motorcycle."

10. The 1st applicant is represented before us today by Mr. Matthews, who advances one ground of appeal, in which he argues that:

" the directions given by the trial judge on the joint enterprise were wrong in law in that they failed to explain adequately to the jury or at all the 1st applicant would not be liable for acts done by other adventurers in the course of a joint enterprise which the applicant did not foresee at all."

11. Mr. Matthews' argument can be simply stated in the following way. He submits that the defence of the 1st applicant, as admitted in his statements, was that he had agreed to do no more than participate in "beating-up" the victim. Mr. Matthews submits that the defence was that he had never allied himself to any other criminal enterprise. Mr. Matthews submits that it was essential that the jury be told that if a wholly different criminal act, that is a wounding by use of a bow and arrow, occurred, they should not convict if they were left in any doubt as to whether he knew of and allied himself to that enterprise.

12. Mr. Matthews referred to a number of authorities in his written argument but relied principally upon the statement of Widgery L.J. in Lovesey & Peterson (1969) 53 Cr.App.R. 461 where he said, at p.464:

"There must, in our view, be many cases of this kind where the jury feel driven to the conclusion that the raiders' common design extended to everything which in fact occurred in the course of the raid, but the question must be left to the jury because it is a matter for them to decide, and this is so notwithstanding that the point was not raised by the defence.

Mr. Buzzard has invited us to consider the substitution on count 2 of a verdict of manslaughter under section 3 of the Criminal Appeal Act 1968. It is clear that a common design to use unlawful violence, short of the infliction of grievous bodily harm, renders all the co-adventurers guilty of manslaughter if the victim's death is an unexpected consequence of the carrying-out of that design. Where, however, the victim's death is not a product of the common design but is attributable to one of the co-adventurers going beyond the scope of that design, by using violence which is intended to cause grievous bodily harm, the others are not responsible for that unauthorized act.

In the present case the degree of violence used against the victim showed a clear intention to inflict grievous bodily harm, and if this was within the common design the proper verdict against all concerned was one of murder. We cannot say that the jury must have reached this conclusion and, accordingly, feel compelled to quash both convictions for murder. Having reached this point we are unable to substitute verdicts of manslaughter since, if a common design to inflict grievous bodily harm is excluded, the jury might well have concluded that the killing was the unauthorized act of one individual for which the co-adventurers were not responsible at all."

It is submitted that the present case really went beyond the situation in Lovesey's case where one of the co-adventurers might have gone beyond the scope of the design. It is suggested that in the present case the possibility existed that the person who fired the arrow did it pursuant to a wholly different enterprise of which only he was aware. It is submitted that if the jury should have been told that the 1st applicant would be guilty of neither murder nor manslaughter if they were left in doubt as to whether the death resulted from an enterprise wholly different from the one to which he allied himself.

13. Mr. Cross Q.C., with him Ms. Crabtree, for the Crown accepts the direct application of Lovesey and Peterson to the facts of the present case and accepts that the judge was required, given the defence raised, to give a clear direction as to the nature and extent of the joint enterprise. He referred to a number of passages in the summing-up where the matter was touched upon but concedes that the key direction which should have been given is not there.

14. The application of the 1st applicant is allowed. The hearing of the application is treated as the hearing of the appeal and the conviction of manslaughter is ordered to be quashed.

15. We turn now to the application of the 2nd applicant.

16. Mr. Adams, who appears for the 2nd applicant, has argued five grounds, in the first of which he suggests that the trial judge misdirected the jury:

"The arrow, as you know from the photographs, measured 15 centimetres and was made of metal and had been especially designed to have a very pointed tip, so that if it was to hit a human being after being fired from a bow, then it would cause, say the prosecution, a really serious injury, and you can form your own judgment about that."

He suggests that the judge indicated to the jury that the arrow was one which had been especially designed "to hit a human being" and the passage was slanted and were prejudicial to the defence of the 2nd applicant. We are satisfied that he seeks to place a weight of argument upon the words which they simply will not bear. The judge's observation was a perfectly proper one. He said no more than that the arrow was designed to have a pointed tip and indicated, which was after all no more than a matter of common sense, that if it hit a human being, it would be likely to cause really serious injury. We are satisfied that there is nothing in this first ground.

17. In the second and third grounds, criticism is made of two homely examples which the judge used when explaining matters of law to the jury. We do not intend to detail them suffice to say that we are satisfied that the jury would not have been in any way misled by either.

18. In his fourth ground he urges that the trial judge misdirected the jury when dealing with the cross-examination of the witness Leung Kwok-cheung. It is first suggested that the trial judge implied that the 2nd applicant was present when the witness Leung and the 1st applicant were in the Oriental Ballroom. We see no warrant for making such a suggestion. It is then urged that the judge prejudiced the defence of the 2nd applicant by repeating in extenso the questions asked of Leung by counsel for the 1st applicant which, had there been admissible evidence of the truth of the contents of the questions, would have implicated the 2nd applicant in a marked way. The repetition, it is suggested, emphasized matters upon which the 2nd applicant had no opportunity to cross-examine and which, given the denials of the witness, were never evidence at all. We are satisfied that the judge was doing no more than outlining matters upon which the 1st applicant had sought to rely but upon which, in the outcome, he could not as they were denied by the witness. There was nothing improper in his reminding the jury of what had taken place in the cross-examination. The jury were fully aware that the questions were denied and that, in the outcome, they proved nothing.

19. We turn then to the final ground which was that the judge had wrongly ruled that the two cautioned statements of the 2nd applicant were admissible. The principal matter argued in this ground was that the judge should have had a reasonable doubt about whether the statements were voluntary because Inspector Cheng Fuk-chuen, the officer in charge of the case, who was present at the taking of the 2nd applicant's first statement, had also been present when a statement was taken from Siu Wai-kwong, another person said to have been implicated, whose statement the judge had excluded being not satisfied that it was made voluntarily. It was suggested that the judge must have had doubt as to the credibility of this officer and that this doubt should have caused him to refuse also to admit the statements of the 2nd applicant.

20. What we have to ask ourselves in this regard is whether it has been demonstrated that the trial judge so misapprehended or so misapplied the evidence that he must have been wrong in admitting the cautioned statements. The trial judge, when he rejected the statement of Siu Wai-kwong, did so in the most forthright terms. He was clearly mindful of his duty and was clearly prepared to deal in a robust way with prosecution evidence which he considered to be less than satisfactory. We have no doubt that he was well aware of his own reasons for rejecting Siu Wai-kwong's statement and that he would have had those reasons in the forefront of his mind when he considered the admissibility of the other statements. This was essentially a matter for the decision of the trial judge. Nothing has been urged which would allow us to interfere with that decision.

21. The application of the 2nd applicant is refused.