THE QUEEN v. CHAN CHUN SANG

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, CHAN Chun-sang, was tried together with another man, WONG Au, on an indictment containing two counts. These were murder and robbery. The scene of these alleged offences is St. Paul's Hospital in Hong Kong and the date is the 30th January, 1984.

2. The victim on the murder count was a Securicor security guard called LEE Hoi-leung. The first count-murder-alleges that the robbery was carried out by D1 and D2 and a person called Dik Hak. The proceeds of the robbery are stated to be $325,000.

3. At the outset of the trial the first defendant, WONG Au, pleaded guilty to the robbery, he also tendered a plea of guilty to manslaughter. This, however, was not accepted by the Crown and he was tried upon the murder charge.

4. After the trial had proceeded for about a week when some 17 witnesses had been called by the prosecution,  including identification evidence against the second defendant-the applicant - he expressed a desire to change his plea on the robbery count.

5. Since up to that point counsel who then represented him had been challenging the prosecution evidence on the basis that the applicant had not been present at the scene at all, she naturally found her position to be somewhat embarrassing. She asked for leave to withdraw which was given.

6. The applicant pleaded guilty and ultimately the jury were directed on this count and returned a verdict in accordance with the plea.

7. There was a brief adjournment and counsel who appears today, Mr. Poll, came into the trial on behalf of the second defendant. In view of the robbery pleas it became apparent thereafter that very little was really in dispute.

8. It is not in dispute that on the 30th January the deceased LEE Hoi-leung was on duty as a leader of a squad of four Securicor guards. On that day, pursuant to their usual occupation, they were collecting cash from various points in the city to take it for deposit in various banks. Two of the team were dropped off at two separate locations in the course of the morning's business and then, the van with the driver and the deceased only in it, went on to St. Paul's Hospital, arriving there at about 2:30 p.m.

9. The deceased went into the accounts office which is adjacent to the lobby on the ground floor of the hospital, and there in the presence of the cashier he counted a quantity of cash and a number of cheques.These were put in four small bags which he then carried 'from the cashiers office through the lobby. When he was close to the lift which was situated in the lobby, he was approached by two men, these were the first and the second defendants. There was another man who had been waiting in the vicinity who also took part in what subsequently occurred. This was a man referred to in the evidence as Dik Hak. He was never arrested and was not upon trial.

10. It was never disputed that the second defendant was holding a 9 mm semi-automatic pistol from which very shortly after this initial confrontation he fired a shot. The bullet struck LEE Hoi-leung on the right chest and passed, in a downward trajectory through the body emerging a little bit lower upon the right side. In its passage it cut the aorta and damaged the esophagus. The guard collapsed slowly to the ground. This bullet, passed right through the victim's body and struck the first defendant, who was standing close to the guard at the time, on the finger which bled profusely and caused him to cry out.

11. Thereafter the money bags were seized by the assailants who fled. The injured guard was taken shortly after that to hospital but was declared dead upon arrival.

12. The three assailants had fled through the rear entrance of the hospital and on the way through the grounds of the adjacent convent school, they were observed by some girls who happened to be in the vicinity.

13. The first defendant was arrested on the 13th of July. He made a statement while in custody which was subsequently introduced in evidence and which contained certain admissions.

14. The applicant was arrested on the 16th of July. An identification parade was held on the 18th and he was identified by one of the school girls as one of the men who had been seen running from the hospital on that occasion.

15. The automatic pistol had been recovered from the place of residence of the first defendant, prior to this identification parade, when the first defendant was arrested.

16. It was subjected later to expert examination and testing. The,-police experts were able to establish that a spent bullet, found at the scene of the robbery, could have been fired by that pistol. One of these witnesses, Mr. Cimino, gave evidence to the effect that the gun could not be very easily discharged, that is to say that it was not one with a hair-trigger. In order to discharge it a pressure on the trigger of some 3 and ¾ pounds would be necessary when the magazine was in the gun.

17. None of the foregoing facts where in dispute. The second defendant, the present applicant, also made a statement under caution after he was arrested. Both of the defendants gave evidence and the statements of both were put in evidence without opposition on the part of the defence.

18. In his statement the applicant admitted going to St. Paul's Hospital in the company of the first defendant and Dik Hak on that day in order to carry out a robbery. However, although he admitted that the gun which he was carrying had been discharged and had caused the victim's death, he said that he was nervous at the time and had pulled the trigger - as he put it - "accidentally", he did not know how.

19. Essentially this was the defence put forward at the trial though with a certain difference to which I shall refer. It was indeed the burden of the defence of both defendants. The first defendant, in his police statement, seemed to imply that the use of the gun on the part of the second defendant was purposeful. What he then said was that he had seen the second defendant go towards the accused and fire at him. In his evidence in court having described how the robbery was planned with another man, who appears to have been the procurer of the crime, a man called Ah Bong, he went on to say how the gun had been procured and given to him for custody for some weeks before the robbery and how it had been kept by him until on the morning of the date of robbery. On that day it was given to the second applicant, the present applicant.

20. Having further described how he and Dik Hak and the applicant had positioned themselves in the lobby, the first defendant went on to say that he had not seen how the gun was actually discharged. It was his evidence that he and the applicant, prior to the date of the robbery and in the course of the planning thereof, had agreed that the gun would not be used for the purpose of shooting at anybody but only would be used to fire in the air if they were being pursued after the robbery had succeeded.

21. In his evidence the applicant elaborated on the idea of accident but he elaborated upon it in a manner which to some extent was in contradiction to what he had said in his statement. He said that what had happened was that as he ran forward holding the gun faith both hands pointing it towards the guard in order to cover his two friends who were to take the money from the guard, he had slipped and jerked his body backwards so that one hand flew free and the gun accidentally went off. He heard. the first defendant cry out and saw that his hand was bleeding. He was then so frightened that he ran off without snatching any bag.

22. The first defendant seemed to agree with this account of the matter and said that it was he and Dik Hak who had taken the money bags. This evidence was contradicted in an important respect by an eyewitness Madam YU Mo-chun. She was a receptionist who was standing behind the desk in the lobby at the time the robbery occurred. She told the court that while she was at her work she heard a sudden shout of robbery and immediately after that she heard a shot. She looked up and saw a man standing close to the guard pointing a gun at him only a few inches from his body. She said initially that the arm of the man with a gun, his back being towards her, was pointing straight towards the guard. Later, she said that she could only see the lower part of the arm but maintained that it was pointing at the gruard at the time when she heard the shout and the shot.

23. She then went on to say that she saw that man snatching one of the bags. Then he and the other man who had been standing behind the guard and who, on the evidence, must have been the first defendant, ran off and she saw a third man come and take another bag. They all then fled.

24. That in outline was the evidence before the jury. The judge went very carefully into the possible defence of the accident, he pointed out to the jury, that if they regarded it as a reasonable possibility that the gun had been so discharged then the most that the jury could do would be to return a verdict of manslaughter and not of murder.

25. Mr. Poll, who has once more represented the applicant upon the hearing of the appeal was content to rely upon the homemade grounds of the applicant as somewhat elaborated by him. He suggests that the evidence in relation to the defence of accident may not have been as fully put to the jury as it ought to have been. He referred us to the testimony of Madam Yu which, in cross-examination, appears to disclose some degree of confusion as to the identity of one of the men who was described as holding a knife. Counsel says that this might detract to some extent from the reliability of her evidence in respect of what she first perceived upon hearing the shot.

26. Undoubtedly that was important evidence since it was at variance with what the applicant himself had said and it gives the picture of a man who having discharged a gun and realised that he had done so was nevertheless pausing to take the proceeds of his act, as distinct from the picture of a man who has accidentally discharged a gun and who, frightened out of his wits, has fled immediately thereafter.

27. We have considered the observations of Mr. Poll in relation to the evidence of Madam Yu but it must be said that on the whole that evidence seems to have been very clear and certainly it was clearly put to the jury. Madam Yu was not relied upon by the Crown as an identifying witness, the only identifying witnesses being the school girls to whom I have referred.

28. Mr. Poll points out that in changing his plea in the way that he did the applicant undoubtedly prejudiced his own case. That is undeniably so. An application was made at that time to discharge the jury but the judge, for reasons with which this court agrees, decided that the public interest would not be served by taking that course. He dealt with the matter by way of instruction to the jury. It is suggested that he did not deal with the nature of the reasons given by the defendant for the change of plea sufficiently fully. The judge did seize upon one particular acpect of what the applicant said in changing his plea which was that he had felt sore measure of remorse upon seeing the school girls who had identified him. His actual words when asked by his own counsel as to why he had changed his pica ranged a little wider than that indicating that he had been overcome by remorse in a general sense and that that remorse had been increased somewhat at the sight of the school girls. We think however there is nothing of substance in that point. The judge dealt with the change of plea quite sufficiently and any damage done was the result of the defendant's own choice and we cannot say that in allowing the trial to proceed the judge deprived the applicant of the measure of justice to which he was entitled.

29. It is then said that if the defendant had intended to use the gun in the way he did he would not have fired at the guard while his friend was standing in such a position that he might be injured by it; and, further, that if there had been a common intention between the robbers to use the gun to fire at anyone in effecting the robbery, it was unlikely that the first defendant would have stood in such a positions.

30. We can only say that the evidence was sufficiently explored by the judge and put sufficiently clearly by him to the jury to satisfy this court that the point must have been apparent to the jury, and in their minds, when they came to consider whether or not the applicant, whether by way of a frolic of his own or by virtue of common design, purposely discharged the gun. That was the short and simple issue in the case - whether the gun was discharged by the defendant accidentally or whether it was an intentional shooting for the purpose of carrying out the robbery.

31. While we are indebted to counsel for his endeavour to make the very most of what was distinctly unpromising material, we are not satisfied that the judge in any way misdirected the jury, either on the law or on the facts. He went very fully into the question of common design and accident the points requiring the greatest attention and the most careful treatment.

32. For these reasons, we are satisfied that the conviction was not unsafe or unsatisfactory, that being in effect the burden of the four grounds of appeal put forward by the defendant on his own behalf and elaborated by counsel for our benefit. The application must therefore be refused.