R. v. HUNG MAN CHIT

Criminal Appeal No. 571 of 1995

Headnote

Criminal intent in joint enterprise is not established by proof of a pretence to join in in order to try to pacify others and avoid violence, nor by proof of a feigned violent attack with the purpose of protecting the victim from more serious injury.

IN THE COURT OF APPEAL

1995, No. 571
(Criminal)

-------------------------------------

----------------------

J U D G M E N T

----------------------

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

The facts

1. On 13 December 1994 a group of men went to the Hon Po Restaurant in North Point. With knives they attacked another group who were in the restaurant. In consequence two of the victims were killed and three others sustained very serious wounds.

2. The appellant was charged with two offences of murder and three of wounding with intent. On 2 august 1995 after trial before Keith J and a jury, he was convicted of all five offences and sentenced to mandatory sentences of life imprisonment for murder and concurrent sentences of 7 years, 7 years and 4 years for wounding.

The Crown's case

3. The Crown's case was that the appellant joined the assailants at a meeting at another restaurant. Armed with knives, they planned and set out to find Sze Tak-to (one of the deceased) and to attack him with the knives together with anyone who might be with him.

4. Knowing of the plan and agreeing with it, said the prosecution, the appellant went with them to the Hon Po Restaurant. In pursuance of the plan, he joined in the attack upon Sze Tak-to and the others with him. The group caused the deaths and injuries complained of and the appellant was a full party to the joint enterprise.

The defence case

5. The appellant's defence, however, was that he knew of the plan to attack some of those at the Hon Po Restaurant but

(a) he thought the victim was to be Hung Kwok-wai (a friend of his) and anyone with him; and

(b) he did not know that knives were to be used until the assailants produced them at the Hon Po Restaurant.

6. He continued that he accompanied the group to the Hon Po Restaurant -pretending to go along with the plan - but actually he went to try to pacify them and thereby avoid any violence. When he arrived at the Hon Po Restaurant, knives were produced by the others and then in an attempt to save his friend from more serious injury, he took a knife from one of them, and using the blunt back of it, he struck blows to his friend at the same time telling him to "be smart" and drop to the floor. The friend did so. The appellant pretended to kick him hard on the back and then called to the group to depart. He left with some others before the two deceased had been attacked.

7. In a nutshell, therefore, the defence was the absence of criminal intent. He never agreed expressly or impliedly to join in the plan and he never helped to put the plan into effect by attacking his friend. On the contrary, he went along with the intention of pacifying the group, but when that was out of the question, he pretended to attack the victim in order to protect him from worse injuries before calling the others away.

The summing-up

8. The judge gave the jury written directions on the law which he elaborated in his summing-up. Insofar as those directions impinged upon the defence advanced, they were as follows:

"Counts 1 and 2:

In order to convict the Defendant on count 1 of murdering Sze Tak To and/or on count 2 of murdering Sze Leung, you have to be sure of 5 things:

(i) there was an agreed plan to attack Sze Tak To or Hung Kwok Wai and anyone who was with them at the time and who might stand in the way of the attack on them,

(ii) the attack on the men in the Hon Po Restaurant was pursuant to that plan,

(iii) the Defendant knew about that plan and ... pretended to go along with it,

(iv) the Defendant did something to help to put that plan into effect ... by chopping Hung Kwok Wai to make the other assailants think that he was going along with the plan and that they could rely upon his assistance if necessary,

(v) either the Defendant knew that the plan involved inflicting on the people who were to be attacked at least really serious bodily injury, or the Defendant foresaw it as a real possibility that the attack would result in the people who were to be attacked receiving at least really serious bodily injury.

If you are sure of those 5 things, you will convict the Defendant on counts 1 and/or 2."

9. Counts 3 and 4 were left in the same way. And count 5 - wounding with intent on the friend - was left in part on the same basis.

The consequence

10. For practical purposes, the directions took away from the jury's consideration the defence this appellant had advanced. On the appellant's own version, it was open to the jury to conclude that he knew of the plan; pretended to go along with it; did something to help to put it into effect by attacking the friend to make the others think he was going along with it and that they could rely on his assistance if necessary; and that once the knives were produced, he foresaw the real possibility that really serious injury would be inflicted.

11. It is trite law that if an accused person raises a defence in law on the facts, however unlikely, however incredible or however fantastic, it must be squarely left for the jury's consideration and decision.

The issue and conclusion

12. The question is therefore if accepted, was the appellant's account - with the possible exception of count 5 - a defence to the indictment? The simple answer is that it was not sufficient to establish guilt for the prosecution to prove that the accused pretended to go along with the joint criminal enterprise. Nor was it sufficient to prove that he did something which made others think that he was going along with the plan and that they could rely upon his assistance, if in fact, his actions were intended to frustrate the plan.

13. The necessary mental element must be proved to establish an accused guilty of being an accessory to an offence. Although the necessary mental element, that is intent, may call for detailed, and perhaps, complex directions in some cases - see R v Hancock [1986] AC 455 at 473-474 per Lord Scarman - with respect to this meticulous judge, such was not required in this particular case. There was here clear evidence that the appellant was a full participant in the joint enterprise to kill and/or to do really serious injury for the jury to consider. Clear directions, tailored to the facts of the case on the lines of those in R. v. Hui Chi-ming [1992]1 AC 34 to deal with the prosecution case was all that was necessary.

14. So far as the defence case was concerned, a simple, practical and clear direction that if the jury accepted, or even thought that the appellant's evidence might be true, in its entirety, they should acquit on all save count 5 ought to have been included.

15. In the result, the appeal is allowed and the convictions quashed.