THE QUEEN v. TANG WAI MING AND OTHERS

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J U D G M E N T

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Silke, V.P.:

1. Tang Wai Ming - "D2" - Tam Biu - "D3" - and Sherman Tsui - "D5" - defendants at trial and applicants before this Court - appeared for trial before Wong, J. and a jury on an indictment containing a single count of manslaughter. Included in that count and trial were two other defendants, Tang Wai Kwong, D1 and Lam Lap Tak, D4, both of whom were acquitted. D2, D3 and D5 having been convicted - the jury deliberated for some 27 hours - now seek leave to appeal against their convictions. Tang (D2) was sentenced to 4 years, Tam (D3) to 3 years and 6 months and Tsui (D5) to 3 years' imprisonment. Tang and Tam also seek leave, should it be necessary, to appeal against those sentences.

2. On 27th January 1989 we adjourned this matter, part heard, so that transcripts of the closing addresses of counsel could be made available to the Court. This arose from the grounds of appeal which related to the joint enterprise directions and the reason will appear more clearly in the course of this judgment. The representation then was Mr. Bokhary, with him Mr. Mayne, for D2 and D3; Mr. McCoy for D5; and Mr. Bruce, with Mr. Wong, for the Crown. When the matter resumed on 15th June Mr. Sanguinetti had taken the place of Mr. Bokhary.

3. On 12th August 1987, two groups of men were out upon the town in the Tsimshatsui area of Kowloon. Wu Fong Chun, the deceased, was with Yiu Yau Man (PW1), Lam Wah Kwong (PW2) and Poon Chi Wai (PW6). The second group was made up of the defendants at trial: Inspector Tang Wai Kwong (D1); Detective Constable Tang Wai Ming, his brother, (D2); Detective Constable Tam Biu (D3); Uniform Constable Lam Lap Tak (D4) and the civilian, Sherman Tsui (D5). Both groups had been celebrating. The deceased was obviously very drunk. His companions had managed to put him into a taxi to get him home but in the area of Chatham and Canton Roads he got out of that taxi.

4. Shortly after that he encountered D2 and a girl, who had accompanied D2 from the last night spot he had visited, walking on the street at some little distance from the rest of the defendants' party. Without reason the deceased bumped into and then struck D2. He was restrained by his friends who probably came to the realisation that D2 was a member of the police force for he had tapped his service revolver. They apologised for the actions of the deceased.

5. One of the issues at trial which was left for the decision of the jury was whether D2 at that point said something about "fixing up" the deceased and further did he make comment to the rest of his party "you give him a punch for me". If he did say these words, or any of them, did he intend them as a joke or did they mean that which they appeared to mean.

6. It was the Crown's case that it was this incident that caused to the police party in general, and to D2 in particular, a loss of face which led to that which happened later.

7. The defendants' party then went to the nearby Dormus Lounge. A little later they left that premises, encountered the deceased's group nearby and D1 punched the deceased on the face. Then D5, with either D3 or D4, dragged the deceased into the staircase of the Ching Kee Store where he was punched and stepped on and kicked until he lost consciousness: this based on the evidence of the deceased's three companions and, in particular, PW6 Poon.

8. The defendants denied any joint assault, and as it must follow, that any of them had hit the deceased.

9. D1 accepted that he had been in the Dormus Lounge with his group. There he had also joined a table other friends, had had a conversation with them and had then gone up upon the stage to sing. When he finished his song, he found that the rest of his group were leaving with their girlfriends. This was about 4:00 a.m.. He went down to the street, saw the rest of his group in front of him and called out to them, whereupon they stopped and he went over to them. On the opposite side of the road was the deceased's group making a lot of noise. He told the deceased's group that his group were members of the police force and enquired of them why they were making so much noise at such a late hour. He produced his warrant card and identified himself. He told the deceased's group to be quiet. The deceased's friends then apologised generally for the noise and also for the deceased's drunken behaviour.

10. After this short discussion he heard some further sounds looked around and saw the deceased rushing forward shouting abuse and trying to attack D2. D5 ran forward to stop the deceased, advising him not to do anything foolish. D5 tried to put his arms around the deceased but was unsuccessful as the deceased was moving about so much. The two of them lost their balance and fell to the ground with D5 on top and the deceased underneath. This was in the staircase of the Ching Kee Store. The defendant's group helped D5 up and his friends went to the aid of the deceased. Those friends lost their hold on the deceased and he fell again. D1 told them that they should take the deceased home immediately. To this they agreed, calling a passing taxi, helping the deceased into it. With that D1 returned to the Dormus Lounge. Up until that time he said he was not aware of the earlier striking of D2 by the deceased.

11. D2 said he decided to leave the Lounge early as he had to be on duty that day at 9:00 a.m.. D3 came down with him, having first attempted to persuade D2 to remain, to help him to get transport. While they were looking for transport D2 saw D4 and D5 and then heard D1 call out to them. He also saw the group on the other side of the road, identifying one of that group as the man who had struck him earlier. After someone in the deceased's party had said the deceased was drunk, and after D1 had produced his warrant card and had spoken to the group, the deceased tried to rush at him. He saw the deceased being restrained and, after a short conversation with the deceased's friends, D2 saw the deceased and D5 on the ground in the staircase entrance. He then shouted out "Do not fight". The rest of his evidence is in conformity with that of D1.

12. The evidence of D3 was on the same lines with the addition that he said that when the deceased was put into the taxi and taken away, the deceased was conscious and he saw no injuries on him.

13. The evidence of D5, with minor variations, coincided with that of D1, D2 and D3.

14. There was evidence concerning D4, who himself did not give evidence, from the other members of the defendant's group and from the prosecution witnesses that he was present at the scene though his participation in the beating said to have taken place was unclear.

15. In respect of him the trial judge left to the jury as the only issue: whether D4 actually beat up the accused or :

"... was acting with the others in a joint or concerted effort to beat up the deceased and in some way intentionally assisted, aided or encouraged the assault with resulted in the death of the deceased."

He then went on :

"This is indeed also the issue which you will have to determine in relation to the other accused."

16. The defendants denied, as was suggested by the Crown, that, upon hearing later of the death of Mr. Wu, they had met together to concoct a story to tell the investigation should they be interviewed. There was evidence that D1, D3 and D4 had met together in a night club on the night of the 12th. This was one of the factual matters upon which the jury had to come to their own conclusions in the course of their deliberations.

17. The case for the Crown throughout was a joint enterprise on the part of the defendants' group to beat up the deceased and that they carried out that joint enterprise in such a manner as to result in his death. The beating occurred at the staircase and a continuing part of it, said the Crown, was the assault at the very end carried out by D5. It was at this point that D3 had gone into the staircase to pull D5 away from the deceased.

18. There was clearly some exaggeration in the prosecution witnesses' evidence as to the duration of the whole of the beating incident, including the last assault by D5, and of the number of blows and their nature delivered to the body of the deceased. In particular it was said that D5 kicked the chest of the deceased but the medical evidence did not bear this out, no injuries being found on his chest area. There was evidence that before D5 left the area of the staircase he had said to one of the deceased's party:

"If anything goes wrong you may come to look for me. I am called Fu Chai."

19. The friends of the deceased took him in a taxi from the scene of the incident to where he lived. There they took a lift to the 12th floor and walked two further floors by way of the stairs. The deceased was unconsciousness. They told the wife of the deceased that he had had a fall and that it was all his fault. One of them, PW1, said that both he and the others had not realised that the deceased would die and they thought it better to leave it to him to explain to his wife why he was injured when he came to. They waited in the deceased's flat for about half an hour but the deceased did not recover consciousness. He was then taken to the Queen Elizabeth Hospital where he was certified dead at 6:24 a.m.

20. There was medical evidence that his injuries consisted of: punctate bruises on his left forehead; a bruised right eye with a split wound on the right lower eyelid; bruised abrasion on the right cheek; two areas of punctate bruises behind the left ear; two healing abrasions on the middle front of the left shin and the middle of the right thigh and unconnected with any recent assault; a bruise between the knuckles of the left index and the middle finger.

21. Internally there was deep bruising of the scalp at the left forehead; deep bruising of the muscle of the left side of the head; the brain was congested and markedly swollen caused by excess fluid; there was very deep bruising of the muscles of the left upper neck with an infiltration of blood in the muscles on the front, back and left side of the first and second neck vertebrae; there were two small tears on the right side of the left vertebral artery, between the first and the second neck vertebrae, with infiltration of blood upwards around the blood vessel.

22. The cause of death was traumatic subarachnoid haemorrhage due to injury to the left verterbral artery. This was caused as a result of the upper end of the left vertebral artery being torn or ruptured and blood then seeped out and tracked along the outer covering of the artery entering into the subarachnoid space, causing fatal compression of the brain. The subarachnoid space is the space beneath the inner covering of the brain and the brain haemorrhage was outside the brain.

23. The medical expert gave it as his opinion that a sudden movement or jerking of the head might cause such a rupture. The deceased had a very high alcohol content in blood and urine: the first 180% milligrams and the second 276% milligrams. In the majority or cases where death results from such an injury as there was here there is a significant high blood alcohol level. The witness had no personal experience of this before this particular case and he spoke from his knowledge of documentated cases. It was his evidence that alcohol may cause dilatation of the artery rendering it more prone to rupture with the consumption of alcohol diminishing the muscular protective reflexes. Excessive movement of the head facilitates the rupture of the artery. In most of the cases death occurred rapidly, and in terms of minutes, but there were cases of death being prolonged. There was no direct evidence here into which category the deceased fell.

24. He also gave it as his opinion that the injuries he saw on the body were equally consistent with their having been caused by a fall on concrete ground or by "blunt force" resulting from hard blows. Blunt force could cause movement of the head at the spine sufficient to cause tears in the vertebral artery. The injuries on the left forehead and right cheek and also on the left side of the head and behind the ear were likely to be produced by blunt force and it was unlikely that all those injuries were produced by one single fall or by one single impact.

25. It was the main thrust of the argument advanced on behalf of D2 and D3 that there were, after the Dormus Lounge, three assaults upon the deceased: the first the slap or punch by D1; the second the general assault in the staircase; and the third the final assault by D5 when he returned to the staircase and was pulled away by D3.

26. The Crown, it was submitted, being unable to say which of the blows which struck the deceased was the cause of death, left open the reasonable possibility that death resulted from the third assault. This, it was argued, was not part of the joint enterprise, if there were such joint enterprise at all. The jury was misdirected in that the matter was not left to them in that manner because the trial judge had melded together that which it was argued were the second and third assaults under the general term of "the assault". It was also submitted that, by the use in further directions given to the jury at their request of the phrase "the subsequent assaults", the trial judge was acknowledging the existence of three separate assaults but without indicating to them the manner in which they should view that evidence.

27. Further that there was at least the possibility that the rupture was caused accidentally either by the excessive movements of the deceased himself or by his falling when being assisted by his friends. This also was not properly left to the jury.

28. That main ground is supplemented by a submission that the trial judge failed to draw sufficiently to the attention of the jury discrepancies as between the evidence of the three main prosecution witnesses - PW1, PW2 and PW6 - and further that the medical evidence did not bear out that which they said had occurred.

29. On behalf of D5 it was submitted that the trial judge had failed to direct the jury that they had to be satisfied beyond reasonable doubt that the cause of death of was the direct and immediate result of the assaults. Further that there was a material irregularity, though this ground was acknowledged as not being the principal ground, in the course of trial as counsel then appearing for the Crown had made an allegation that D5 was a Kung Fu blaster without any evidential foundation thus creating a prejudice which was not dissipated by the specific directions given by the trial judge.

30. On the main ground argued we accept, having considered the whole of the evidence and the closing address of the Crown, that the Crown nailed their colours to the mast of a joint enterprise of which the attack by D5 was an integral part. We do not consider that the defence in the Court below, despite the references to various portions of the final addresses of counsel then appearing for the defendants, was predicated on there being the three separate assaults which they now seek to show existed. While D3 did prevent D5 from continuing his assault upon the deceased there was evidence more than sufficient for the jury to come to a conclusion, once they found that beating had occurred, that that beating was part of the general beating administered to the deceased. The defence had not been in a position at trial, in the light of the general denials by the defendants, to do other than suggest, as it was of course open to them to do, that the attack by D5 was a frolic of his own.

31. In the course of his general directions on the law at the commencement of the summing up the trial judge had, of necessity, to draw to the attention of the jury the difference between murder and manslaughter. Having done so he then said to them:

" To put it in a different and more specific form and in the context of this case, it is manslaughter if death results from an unlawful act on the part of the accused. The unlawful act must be such that ail sober and reasonable people would inevitably recognize must subject the other person to at least the risk of some harm resulting from that act. The harm need not be serious and it does not matter whether the accused realised the risk or not.

If you are to conclude that the accused did assault the deceased, as a result of which the deceased died, and the assault amounted to an unlawful act in the sense that all sober and reasonable people like yourself would inevitably recognize must subject the deceased to the risk of some harm, not necessarily serious harm, whether the accused realised this or not, that would be manslaughter."

32. While conscious that counsel have criticised the use of the phrase "the assault" nevertheless, in the context of the evidence overall, this was a perfectly proper direction. We do not accept that the trial judge should have, on the evidence before him, separated the staircase beating into three separate compartments: first the punch by D1; second the assault in the staircase; and third the assault by D5. The jury were entitled to consider the incident at the staircase as one and continuous and, if they so thought fit, part of the joint enterprise. They clearly did not consider the single punch by D1, although he was present throughout the rest of the incident, as being part of any joint design.

33. Criticism has been levelled at the judge for failing, in redirections sought by the jury, to give them a definition of conspiracy. It seems clear that the jury picked up the word "conspiracy" from the closing speech of Mr. Mayne. But Mr. Mayne there was using the word in the context of the agreement implicit in a joint enterprise and not as a term of art. It might perhaps have been preferable had the judge made reference to this but he was under no obligation, there being no charge of conspiracy, to define it to the jury.

34. Causation however causes greater problems. There was evidence coming from D1 and D2 which, if believed, would suggest that the friends of the deceased had, while taking him to the taxi after the incident in the staircase, dropped him or allowed him to fall on two occasions. But it must be remembered that this evidence was given in the context of a total denial by the defendants of any assaults or beatings of any kind and that it was denied by those witnesses to whom the proposition was put. That was fully before the jury as was the evidence that a sudden accidental movement or a jerk might have caused the rupture. They were entitled to come, as judges of fact, to their own findings as to they accepted.

35. It was the theme of the summing up, and repeated on a number of occasions, that it would be manslaughter only if death resulted from an unlawful act on the part of the accused. The jury could have been under no illusions in respect of that. They sought redirections, amongst them a revision of the medical evidence. That placed external injuries in the area of the body where internal injuries were found. The jury were also concerned to be advised as to how far the medical evidence supported the whole of the evidence given by the Friends of the deceased. This had particular relevance to the alleged kickings on the chest by D5. The medical evidence did not, as we have stated, support that piece of evidence.

36. While the deceased's friends had initially told his wife that the deceased had had a fall which had caused his injuries an explanation for saying this for this was given. Again, it was a matter for the jury to consider whether they accepted that or not.

37. The jury was clearly a very conscientious one. This appears both from the questions which they asked and the time which they took to come to their conclusions. They had in mind the issue of causation and, there is no doubt, that did fall for their decision and they had been advised upon it. Once they had come to the conclusion that beatings had occurred, causing the undoubted injuries, and that they had been inflicted by the defendants then it was a matter for the jury applying their common sense which we must accept that they did, to come to the conclusion that the deceased died as a result of the injuries received in the beating.

38. Having given anxious consideration to the submissions made to us by Mr. Bokhary and subsequently by Mr. Sanguinetti and also those of Mr. McCoy, in our judgment, the evidence entitled the jury to come to the conclusions they did. D2 and D3 were not, as counsel would have it, deprived of a reasonable possibility of acquittal. The trial judge clearly had left the issue of whether the cause of death was the direct and immediate result of the assault to the jury.

39. As to the matter of D5 being a Kung Fu Master and the questions asked of him being a material irregularity. It was clearly a question which should never have been asked but once it was the judge, very properly, directed the jury that they should ignore it, objection being taken by counsel then appearing for D5, with respect, somewhat belatedly. When the jury returned after submissions had been made on that issue, counsel then appearing for the Crown stated he would like to make it clear that there was no evidence that D5 was a Kung Fu Master or that he had spoken to the police about it. He went on that they should ignore any such suggestion. This was immediately endorsed by the trial judge who told them they should ignore the matter entirely. And this was a direction repeated in the course of the summing up. He told them to ignore altogether the suggestion by Crown counsel "which was made without foundation".

40. It is always difficult for a judge, when a piece of prejudicial evidence suddenly appears, as to what course he should take. If he immediately intervenes there is the danger that that piece of evidence might be highlighted. If, of course, there is objection taken to it then it would be a matter for him to rule. Here the objection was taken some little time after the offending questions were asked. The Crown corrected the impropriety. The judge endorsed this correction and indeed reminded the jury of it in the course of his summing up. The evidence was no doubt prejudical but the judge took, in our judgment, all the proper steps and it must be accepted that a jury, when given directions by a trial judge of this kind, or generally on matters of law, will carry them out. We do not think that this matter amounted to the material irregularity Mr. McCoy would have us find.

41. Having carefully and, as we said earlier, anxiously considered all the matters raised before us in the course of this application we do not think these convictions to be wrong or in any way unsafe or unsatisfactory. The applications for leave to appeal by D2, D3 and D5 are refused.