R. v. CHAN WING YIN and Another

IN THE COURT OF APPEAL

1995, No.570
(Criminal)

HEADNOTE

Murder - whether self-defence and provocation should be dealt with in summing up where offender uses knife for the purpose for which he brought it to the scene.

Held - No such direction was necessary.

IN THE COURT OF APPEAL

1995, No.570
(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. Chan Wing-yin ("the 1st applicant") and Liu Ka-po ("the 2nd applicant") faced one count of murder and one of attempted robbery. The murder count alleged that they, on 18th December 1994, in Hong Kong, murdered Yung Fu-wing. The attempted robbery count alleged that they, on 17th December 1994, at No.14C Sai Shan Sun San Tsuen, Tin Shui Wai, Yuen Long, attempted to rob Choy Ngor.

2. The 1st applicant was aged 15 years and one month at the time of the offence. The 2nd applicant was aged 20 years and one month. At trial the 2nd applicant pleaded guilty to attempted robbery and not guilty to murder. He was, however, prepared to plead guilty to manslaughter and this plea was accepted. He was then sentenced upon the basis that he had been the lookout and had only entered the premises where the attempted robbery was taking place in order to intervene when the 1st applicant and the deceased became engaged in a struggle. He was sentenced by Leong J. to 7 years on the manslaughter count and to 4 years on the attempted robbery count and the sentences were ordered to be concurrent. He now seeks leave to appeal against those sentences.

3. The 1st applicant was found guilty after trial and was sentenced to imprisonment for life on the murder count and to imprisonment for five years on the attempted robbery count.

4. The case against the 1st applicant rested for the most part upon his cautioned statements. There were three in all. The first was made to the arresting police officer Constable 49119 at 5:32 p.m. on 17th December at No.60, Ching Chuen Wai, Tuen Mun, the scene of arrest. The case was then one of attempted robbery and wounding as the deceased was still alive. In reply to the caution the applicant said:

"Ah Sir, I intended to go with him to that house to rob, but he resisted unexpectedly. Then I stabbed his abdomen with knife. It's nothing to do with my friend. He just acted as a lookout."

This statement was post-recorded and signed by DPC 22359 at 2:30 p.m. on 18th December 1994 in the Tin Shui Wai Police Station. The detective then asked the 1st applicant a number of questions. He admitted stealing the two knives from the Wellcome Supermarket and going to the scene of the robbery to commit robbery. The following passage then followed:

"Question 11:How did you get inside the house, the scene?

Answer: Because the door (insertion) of that house was open.

Question 12: When you entered the house, did the two of you hold anything in hands?

Answer: Liu Ka-po and I each held a knife in hand.

Question 13: Which hand did you hold the knife with?

Answer: I forget.

Question 14: What happened after entering the house?

Answer: I said to an old woman inside the house 'Robbery'.

Question 15: What next?

Answer: Then Yung Fu-wing rushed in and kicked me on the back once and said to me, 'Don't you know me?' Then Yung Fu-wing raised a knife to hack me. Then I stabbed him on the belly with the knife. And he firmly grasped my outer garment, denim jacket. I was so scared that I stabbed Yung Fu-wing on the body with the knife wildly.

Question 16: How many times did you stab Yung Fu-wing with the knife?

Answer: I forget."

He later said in answer to Question 20 that he did "not know what kind of knife" Yung Fu-wing had held but that "my right hand was probably hacked and wounded by Yung Fu-wing". In his final answer he said, "I did not mean to kill (any) person." The applicant gave evidence at trial denying that the above exchanges had ever taken place. He said that neither he nor the constable had said anything at the time of arrest.

5. Tang Yuk-lai, the mother of the 1st applicant, was present at the taking of this statement but she had not been present at the time of arrest when the applicant made his first statement, the subject of the post-recording. The third statement was taken at 11:10 a.m. on 19th December but it is not a matter of any importance in this application.

6. The cautioned statements having been challenged were, after hearing voir dire evidence, admitted by the judge who was satisfied that they had been made freely and voluntarily. Mr. Sceats, who appears for the 1st applicant, argues in the first ground that none of the cautioned statements should have been admitted as the first of them was taken in breach of the directions for questioning of suspects and the taking of statements. The thrust of this ground is that the applicant was under 16 and that the first statement was taken, without there being any compelling reason for so doing, without the presence of either parent or guardian. That statement was taken by the arresting officer after caution immediately prior to arrest. Uniformed officers had followed a trail of blood for some 3.5 km from the residence of the deceased to the premises at which the 1st applicant was arrested. He was cautioned and responded to the caution and was then arrested. In such circumstances, the arresting officers were clearly called upon to act with expedition. It would have been wholly impractical and, indeed, wrong had they not proceeded immediately to caution and arrest of the applicant. If there was a breach of the directions it was not such as would require a judge to exclude that statement.

7. We turn now to Ground 2. At end of his second cautioned statement the following passage appeared:

"Question 37: Do you have anything else to explain or add?

Answer: Ah Sir, as I recall it, Liu Ka-po, at about 2 o'clock in the afternoon, before the crime, gave me eleven pep-pills to take. I took (them) all in one go. He took some as well. So my mind was not so sober at the time of committing the crime.

Question 38: Do you have the habit of taking pep-pills?

Answer: Just took (some) sometimes, about three times a month on the average?

Question 39: What kind of pep-pills did you take?

Answer: Small cross, white in colour."

The trial judge directed the jury as to the effect of drugs on criminal liability and no criticism is made of that direction. The submission is that the trial judge failed to tell the jury that they were entitled to accept part of the 1st applicant's evidence even though they had rejected other parts of it. It is true that there was no such direction. We are satisfied that such direction does no more than state a matter of the plainest common sense and do not consider, in the circumstances of this case, that the summing-up was flawed in any material way by its omission.

8. The substantial ground in this appeal is Ground 3 which contends that the judge failed to leave issues of provocation and self-defence to the jury. It is the contention of Mr. Sceats that the answers to questions 15 and 20 set out above raise both provocation and self-defence.

Self-defence

9. We deal firstly with self-defence. Mr. Sceats reminds us, rightly, citing George Anthony Porritt (1961) 45 Crim.App.R. 348 that if there is anything which raises provocation, which might justify a verdict of manslaughter, it is duty of the judge to direct the jury on the possibility of such verdict, even though the issue has not been raised by the defence, and is inconsistent with the defence which has been raised. He submits, and we accept, that it is equally incumbent upon the judge, whether it has been raised or not, to leave the issue of self-defence to the jury. He refers particularly to the following passage in question 15 submitting that it raises self-defence:

"Then Yung Fu-wing rushed in and kicked me on the back once and said to me, 'Don't you know me?' Then Yung Fu-wing raised a knife to hack me. Then I stabbed him on the belly with the knife."

He submits that the applicant's evidence that he stabbed the deceased only after having been kicked and threatened clearly raised self-defence as an issue for the determination of the jury.

10. Mr. Reading for the Crown, relying on Siu King-him and Others v. R. (1980) H.K.L.R. 126 submitted, citing Roberts C.J. at p.138, that the applicant cannot be held to raise self-defence as he was "a person actively engaged in a felony of violence" who could "have no lawful excuse for committing further violence under the guise of self-defence". Watkins L.J. said, however, when delivering the judgment of the Court of Appeal in R. v. Johnson (1989) 1 W.L.R. 740 that the fact that the provocation which caused the loss of self control was "self-induced" did not cease to make it provocation for the purposes of s.3 (our s.4) of the Homicide Act.

11. It is submitted by Mr. Sceats that the reasoning in Johnson's case applies equally to self-defence, i.e. when a person committing an offence creates a situation in which he acts to defend himself he is entitled to rely upon self-defence if charged with murder.

12. We are satisfied that, in the outcome, we do not have to resolve the conflict, if, indeed, there be one, between Siu King-him's case and Johnson's case. What we have to ask ourselves is whether the matters set out in the statement of the applicant raised any issue of self-defence. The question can be formulated as follows - If the applicant was kicked and threatened, as he said he was in his statement, did this, in the circumstances, raise anything which would have justified him defending himself by stabbing the victim in the belly? The sequence of events as described by the applicant must be examined with care. Initially the applicant described what he said had occurred as follows: "he resisted unexpectedly. Then I stabbed his abdomen with knife". There is no suggestion here that the householder was doing any more than resisting the robbery. Later the applicant, as we have already set out, described the resistance in more detail saying:

"Then Yung Fu-wing rushed in and kicked me on the back once and said to me 'Don't you know me?' Then Yung Fu-wing raised a knife to hack me. Then I stabbed him on the belly with the knife."

The fact of the matter was that the applicant admitted that he had procured the knife to use in the robbery. This must be taken to mean to use, as necessary, both in the course of the robbery and, if necessary, in effectuating escape from the scene. The deceased reacted in a way which any offender must have anticipated he might.

13. There was, on the applicant's own admission no attempt to drop the knife and surrender nor to drop the knife and flee. It was used for both of its intended purposes - first to menace Choy Ngor, the elderly lady, and then to stab the deceased to ensure escape. The statement of the applicant did not, we are satisfied, raise any issue of self-defence.

Provocation

14. The argument for the applicant does not, however, stop there. He also seeks to rely upon provocation. Particular reliance is placed upon the following words in the applicant's statement:

"And he firmly grasped my outer garment, denim jacket. I was so scared that I stabbed Yung Fu-wing on the body with the knife wildly."

It is submitted that this raises provocation. The applicant, according to his statement, being "scared" inflicted 47 wounds on the body of the deceased. We reject the submission that the action of a wounded man grasping the jacket of his assailant could properly, in law, be regarded as provocation. We are satisfied that this ground must also fail.

The application is refused.

15. We turn now to the application to appeal against sentence of the 2nd applicant. It is submitted on his behalf by Mr. Cotsen that the trial judge failed to take his guilty plea and his clear record into consideration when imposing an overall sentence of seven years' imprisonment. We reject the suggestion that the guilty plea was not taken into consideration. The judge, when sentencing, said at the very outset:

"Originally on the indictment, the first count was murder, but you pleaded guilty to manslaughter. The plea was accepted and therefore you are now convicted of manslaughter. The second count is attempted robbery."

The judge clearly had in mind that the applicant had pleaded guilty to the offence. Further the judge made it plain that he had considered the Probation and Training Centre Reports which he had sent for and we have no doubt that he was fully aware when sentencing that the applicant had no criminal record. The real question is whether the sentence of seven years was an appropriate one in all of the circumstances. We have no doubt that it was.

16. The application for leave to appeal against sentence out of time is also, therefore, refused.