THE QUEEN v. AU CHI KONG

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. These proceedings unfortunately go back a long way.

2. On the 22nd November 1983 at 10.45 in the evening, a gang of men armed with knives raided a mahjong school in Tsuen Wan. They killed one person who was inside the school and they wounded six others. They made good their escape in the transport by which they had come.

3. On the 15th December the same year the Defendant, who is now the Applicant before us, was arrested. He made a statement to the police and the following day he was charged.

4. In 1984 he was put on trial with seven others, charged with one count of murder and six counts of wounding with intent to cause grievous bodily harm. All but two of the eight Defendants were convicted. The present Defendant and one other lodged an appeal, both of which were successful and retrials were ordered. We understand that the retrial of the other Defendant is at present the subject of an appeal to Her Majesty in Council.

5. The Applicant's retrial came before Hopkinson J. and a jury on the 1st July this year. The evidence was very brief: photographs were put in, together with a plan of the mahjong school and knives which had been found there after the raid had taken place. The fact of the murder and of the wounding of the six others was formally admitted. The only evidence which was called before the jury was concerned with the proof of the statement which the Defendant had made to the police on the day of his arrest and the answers which he had given when formally charged. The latter was of little assistance, being merely to the effect that he had not chopped anybody.

6. The statement that he made to the police did not admit actual participation in the attack, but did admit conduct from which the jury could, and did, infer that he aided and abetted the crime. The material parts of that statement are brief:-

"On that night 'Ah Moon' told me to go to have a barbecue. Cnly when I'd got up there did I come to know about this incident. But I did not dare to go away because I did not know the consequence. So I followed them to board a vehicle to go to Lai King. Then someone gave knives to us. I took a knife. I was taken in the veehicle to the Luen Fat Mahjon School. Persons inside the vehicle ahead took knives, alighted and rushed inside. I took the knife and alighted. But I did not dare enter. I heard people fighting. Then they ran to board the vehicle. I then followed them to board the vehicle to run away. Then we alighted at different places. I then myself took a transport to go away. Actually I did not chop and injure any person."

Then in answer to one of the questions which was subsequently put to him:-

"A man 40 years old, whom I did not know, said to go to Luen Fat to chop people. Then I knew that they wanted to chop people."

7. The Defendant himself neither called nor gave any evidence.

8. After taking considerable time for consideration, during which they requested more guidance from the judge, the jury returned unanimous verdicts on all counts.

9. At the close the prosecution defence counsel had submitted that there was no case to answer, but the judge rejected that submission. There is no complaint in that respect.The appeal, apart from the usual catch-all of 'unsafe and unsatisfactory', is limited to criticisms of the summing up.

10. When counsel for the Crown opened his case to the jury he used these words -

"    The basis of the Crown case against this accused is not that he actually killed or wounded anyone himself. The basis of the Crown case is that he is from a legal standpoint criminally liable for the acts of the others as an aider and abetter of what they, as principals in the offence, did."

Later he referred to "the only issue that really remains for your decision" and said "That issue, you will see as the trial develops, will probably be as to whether you are satisfied to the necessary standard of proof, beyond reasonable doubt, that this accused sided and abetted those who actually committed the offences charged, for if he did aid and abet them, then legally he also is guilty of them."

11. Counsel's closing submissions were to similar effect. We quote, for example,:-

"The more difficult issue for you in this trial is whether the other evidence, that is principally his cautioned statement and his answer to the charge, whether they go far enough to satisfy you beyond reasonable doubt that the accused aided and abetted the acts of those others, whoever they were, so as to make him a party to whatever the others did and thereby guilty of the like offences."

and -

"… it is my submission to you that any act of assistance or encouragement with knowledge that such a criminal enterprise is afoot, is in law sufficient to constitute an accused person 'an aider and abetter', an aider and abetter in the proven act of others."

and finally,

"You must at the end of the day reach those conclusions with such force that you are satisfied beyond reasonable doubt that he aided and abetted the principal actors in this dreadful attack by being where he was offering the visual support that you may think he offered, by his presence outside the premises with a knife, and by encouraging the others to do what they did, ……."

12. The defence submission followed the line thus indicated. Counsel emphasized the need for the prosecution to satisfy the jury of the two essential ingredients of aiding and abetting which he suggested to be (1) the intent to encourage, and (2) actual encouragement.

13. It is true that counsel for the Crown used the word "assistance" in addition to that of "encouragement", but he was referring, he tells us, only to the possibility that the Defendant may have been acting as a lookout for the others who were inside. The jury could infer that to have been the situation if they were satisfied that the Defendant's admission of presence was true, but did not accept his qualification of being afraid to go ahead with the others. And that would have been a manner of aiding and abetting alternative to that of being present and encouraging.

14. We do not stop to enter the discussion of whether a lookout is a principal in the crime or merely an aider and abetter. We may observe in passing that we are indebted to some interesting submissions from counsel on the historical development of the law relating to secondary parties to a crime. We also do not consider whether such conduct of being a lookout was a proper inference to be drawn from the actual words used by the Defendant in his statement. The judge's lengthy exposition and illustration of the law went far beyond that and we have to say, with every respect, that in our view he totally confused the concept of joint enterprise with what he took to be a form of aiding and abetting by participation in the crime itself, and in effect left to the jury the further possibility that the Defendant was liable to conviction by way of taking part in a common attack which included within the contemplation of all those taking part, the likelihood that those, the subject of the attack, would suffer really serious injury.

15. That was not the way the Crown had put its case below. Mr. Cagney, who appears for the Crown, suggests that had it done so it would have presented an almost ironclad case against the Defendant. Mr. Smith, who appears for the Defendant, would not agree to quite that extent but he does concede the force of the observation. His position, had the case been put in that manner, would, as he emphasizes, have been completely different, and would have required very careful consideration to be given as to the course to be taken by the Defendant. Failure to give evidence to the jury in those circumstances might have been extremely damaging. However by the time the judge brought about that position, after the close of the evidence and the submissions, it was too late. The Defendant had already committed himself to silence and the omission could not be repaired.

16. In our view that circumstance rendered the trial unsatisfactory, and for that reason alone we would consider that the verdict ought to be set aside. It is not necessary therefore to consider other grounds of appeal that were put forward.

17. It has been suggested that even so we ought to apply the proviso, because the conclusion of guilt was one that must have been reached by any jury properly directed. That is a submission which may very well have force having regard to the evidence as it stood at the trial. But it cannot be right to apply the proviso when, had the trial proceeded otherwise, as it ought to have done, the Defendant may well have taken the opportunity to put other evidence before the jury.

18. For these reasons we grant leave to appeal, treat the hearing as the appeal, and quash the convictions that were recorded below. We would be grateful to hear counsel as to what further order, if any, we ought to make.