THE QUEEN v. NG WAI HUNG

IN THE COURT OF APPEAL

CRIMINAL APPEAL NO. 479 OF 1990

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BETWEEN

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JUDGMENT

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Sears, J.

1. This is an application for leave to appeal against conviction arising after the trial of the applicant together with one Sin Hei, the 2nd and 1st defendants respectively, who were convicted after trial by Deputy Judge de Souza on September 6th, last year, of the offence of aiding and abetting wounding with intent. The brief facts were these. The 1st defendant had suspected that his wife had been having an affair with Cheng Sik Hung and on the 18th December 1989, he had asked his wife to arrange a negotiation talk at the pavilion of the Cheung Hong Estate recreation area.

2. The 1st defendant had asked the 2nd defendant whether he would help him. He said to the 1st defendant, and this is the 2nd defendant's cautioned statement, "The 1st defendant asked me if I would help him if he was in trouble.I told him that I would help him. Ah Hei then told me that his wife, Cheung Po Ling, had another man. Later the 2nd defendant said Ah Hei asked me if I had a Sang' (a weapon). I asked him why he needed it. He told me that he feared the other side would bring along some person, and if it went wrong he would use it to set upon him". He then told how he went up to his room and obtained a camp-knife and handed it over to the 1st defendant. There was, indeed, a meeting where the 1st and 2nd defendants were present, and Cheung Sik Hung who was the man who was said to be having an affair with the 1st defendant's wife.

3. In the course of the discussion over the negotiation fee, a struggle took place. The 1st defendant took out the camp-knife and stabbed Cheung Sik Hung in the chest. The 2nd defendant came forward to separate them.

4. The submission which is made by Mr. Hemmings is that the evidence does not support the charge which has been laid. He submits that the evidence is not sufficient to support the proposition that the 2nd defendant contemplated, that this weapon would be used in the manner in which it was and he submits that the inference to be drawn from what is stated, is that it would only be used for the purposes of a self-defence.

5. The 2nd defendant chose hot to give evidence. The evidence therefore which the learned Judge considered and in our judgment properly considered, was that the 1st defendant had told him that he feared that something might go wrong and if it went wrong he would use it, that is the knife, to set upon him.

6. In our judgment, the correct starting point for these matters is set out in the speeches in Maxwell V.D.P.P. for Northern Ireland (1979) 68 Cr. App. R. 128. In the speech of Lord Hailsham, at page 147, he said  "The only substantial matter to be discussed in the appeal is the degree of knowledge required before an accused can be found guilty of aiding and abetting counselling or procuring. To what extent must the accused be proved to have patricular knowledge of the crime in contemplation at the time of  his participation and which was ultimately Committed by its principal perpetrators? For myself I am content for this purpose to adopt the words of Lord Parker C.J. in R. v. Bainbridge (1960) 1 Q.B. 129 when after saying that it is not easy to lay down a precise form of words which will cover every case he observed that there must not be merely suspicion, but knowledge that a crime of the type in question was intended". The learned judge below, in our judgment, applied the correct test in law when evaluating the evidence which had been placed before him. He came to the conclusion that the applicant here, the 2nd defendant before him, did contemplate that the knife might be used in some assault and in our judgment, despite the able submissions placed before this Court, we consider the judge correctly directed himself in law upon the facts which were before him.The application for leave to appeal against conviction should, therefore, be refused.

7. Insofar as the appeal against sentence is concerned, the 1st defendant, who was the man who used the knife which caused the wound, was sentenced to 2 years imprisonment. The learned judge, when examining the position of the 2nd defendant said "I see no difference between the culpability of the principal and that of the the aider and abetter even though I accept the wound was  actually inflicted not by the 2nd defendant. The 2nd defendant did envisage the infliction of the injury being a distinct possibility and he nevertheless rendered assistance to his partner in crime. Accordingly, I consider an identical sentence of 2 years to be fair, proper and just for this defendant".

8. Mr. Hemmings has submitted that there were different circumstances prevailing with regard to this applicant, in that, although he had given the knife to the 1st defendant, it may well be that he had not addressed his mind fully to what might come about and therefore was reckless as to what would occur with this knife. Further at the time of the incident he was acting in a conciliatory role insofar as the wife was concerned and as soon as the struggle ensued he tried to separate the two, and in the course of so doing sustained a minor injury himself. At the conclusion of the incident he arranged for the victim to be taken to the hospital for treatment. In those circumstances, it seems to us there is a valid distinction which can be drawn between the culpability of the 1st defendant and this applicant.

9. Having regard to all of the circumstances and recognizing that this is still a serious matter, we consider that the appropriate sentence should be one of 15 months imprisonment. To that extent, therefore, the appeal against sentence is allowed.