LAW KAM WAH ALIAS LI CHI HUNG v.THE QUEEN

bjbj CACC000985/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 985 OF 1971 ----------------- BETWEEN LAW KAM WAH alias LI CHI HUNG Appellant THE QUEEN Respondent ----------------- Coram: Briggs and Huggins, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Huggins, J.: The Appellant was indicted on one count of murder and one of wounding with intent and was convicted on both counts. He and another young man, called CHU Yuen-tat, went to a teahouse. Inside the teahouse were sitting two young men (TSANG Yu-chan and MAK Yin-wing) and a girl. Within seconds of the first named couple's first entering the premises there was - to use a neutral term - a commotion in which Tsang and Mak received serious injuries. Tsang died shortly afterwards. There was evidence that the Appellant and Chu had had a dispute with Tsang and Mak some time before. When they entered the teahouse on the day of the alleged offences they were armed with long butcher's knives which had been wrapped in newspaper. The case for the Crown was that this was a deliberate attack by the Appellant and Chu on the two men and that there was a common intent to cause at least grievous bodily harm to both men. The case for the Appellant was that he and Chu went into the teahouse merely to talk to the other two men, that Mak thereupon attacked the Appellant with a stool and knocked him to the ground and that the injuries inflicted on Mak were inflicted by Chu when he came to the Appellant's assistance. The Appellant says, of course, that he never intended any attack upon the Deceased. The first point taken upon the appeal is an alleged misdirection as to the intent which must be proved to support a conviction for murder. The learned judge said that the Appellant would be guilty of murder if "the death of the deceased was caused in pursuance to a common intention to do acts calculated to cause really serious bodily harm". It is suggested that use of the word "calculated" introduces an objective test of intent. It is an unfortunate word to have used because it is ambiguous: it may mean little more than "likely" or it may mean "planned deliberately". If this passage had stood alone it might well be that the conviction would be unsafe, but looking at the summing-up as a whole we are fully satisfied that the jury must have understood that they had to be satisfied of the Appellant's intention that serious bodily harm be caused to the Deceased. Next it is argued that the direction on the issue of common intention was inadequate and confusing. Counsel states that a person present at the time an offence is committed may be convicted of that offence if either (1) he was aiding and abetting the offence or (2) the offence was committed in pursuance of a pre-arranged plan to which he was party. Counsel submits that each is a separate and distinct basis of guilt, that they ought not to be confused and that the learned judge did confuse them. He cites Mohan v. Reg. (1) for the proposition that a person present, aiding and abetting the commission of an offence may be found guilty although there was no pre-arranged plan. As we understand the position that case does not support the argument that there are two separate and distinct bases of guilt. In both sets of circumstances predicated by counsel the essential elements are presence, participation and common design. Where a pre-arranged plan has been proved it is unnecessary to establish the common design by evidence of the accused person's conduct at the scene. Where there is no evidence of a pre-arranged plan the participation in a common design must be proved by the conduct of the accused person at the scene. It need hardly be added that where there is a pre-arranged plan and the accused person was not present and participating in the offence he is guilty of no more than conspiracy to commit the offence. In the present case there was no direct evidence of a pre-arranged plan and the Prosecution asked the jury to infer from the Appellant's conduct at the scone that he was participating in a common design to do at least grievous bodily harm to the two victims. The passage complained of is: " If the Crown proves beyond reasonable doubt that the death of the deceased was caused in pursuance to a common intention, to do acts calculated to cause really serious bodily harm to the deceased then anyone proved to be a party to that common intention who was present either actively assisting in it or able, ready and willing to assist should the necessity arise is just as responsible as if he had inflicted the fatal wound. Remember there must be something more than mere standing by, mere presence itself would not be enough. On the other hand, readiness, willingness and ability to assist, if required, is enough as, of course, is any act of participation, act of assistance because, of course, standing by ready, willing and able to assist is participation." This in itself is only part of the direction on the elements necessary to prove the offence, but counsel points to the statement that readiness, willingness and ability to assist should the necessity arise would be enough. Taken out of its context that would certainly be an insufficient direction, but we see no reason to criticise the direction as a whole. Counsel submitted that the judge was suggesting to the jury that acts which were not sufficient to establish the Appellant as a principal in the second degree were sufficient evidence of common intent. As we have seen, common intent is one of the elements of guilt as a principal in the second degree and we are satisfied that it was made clear to the jury that all three elements must be proved to their satisfaction. Counsel for the Appellant complains that there was a misdirection on self-defence, but before dealing with that we must refer to the contention of counsel for the Respondent that the learned judge was wrong to have left self-defence to the jury at all. Primarily this issue concerned the wounding charge but it has been contended that it was also material to the charge of murder. The contention for the Crown seems to depend upon the evidence that the whole incident occurred within a matter of a few seconds and in a very limited space. It is said that the Appellant and Chu were clearly intending aggression and that once they revealed their aggressive intention they could not fairly be said to defend themselves against their intended victims. We think the jury can have had no difficulty in rejecting self-defence as a substantial issue but we are unable to say that the learned judge was wrong to leave it to them. It is possible, if unlikely, that Mak made the first aggressive move and did so before he was aware of the aggressive intention of the Appellant and Chu. If that was a possibility then the aggressive intention latent in the mind of the Appellant would not have disentitled him from defending himself, although in such circumstances a jury might well find it hard to accept that he did no more than was reasonably necessary for the purpose of defending himself. In our view it was proper to leave the issue of self-defence to the jury. The alleged misdirection is that the learned judge told the jury that the Appellant was under a duty to retreat. If he did so direct them there was a misdirection, because the possibility of retreating is merely one of the elements to be considered in deciding whether self-defence has been negatived: failure to retreat may show an unwillingness to disengage but does not necessarily do so: see Reg. v. Julien (2). Counsel relies on a passage in the summing-up where the learned judge said: " But none of the evidence suggests that he retired; none of the evidence suggests that he tried to get away from any assault that may have been taking place on him". Undoubtedly that placed a heavy emphasis on the element of retreat but, again, it is wrong to take a passage out of its context in the summing-up as a whole. In our view the learned judge had made it abundantly clear that in self-defence retirement was what he called "the first path" which might be open to the person attacked and that circumstances might arise in which that first path would not be open. Heavy as was the emphasis laid by the judge on this element we think he was doing nothing more than expressing his own view that, even if the Appellant's story were true, in the circumstances of the case he failed to retreat when it was open to him to do so: the passage complained of did not destroy the validity of the direction. Although the notice of appeal alleged that the judge was in error in stating that there was no evidence that the Appellant did retire or retreat or attempt so to do, this point was not pursued on the hearing of the appeal and certainly none of the evidence read to us leads us to think that the judge was in error. It is then contended that although self-defence did not arise as a possible defence available to Chu on the charge of murder, nevertheless the suggestion that the Appellant was acting in self-defence when he struck Mak was relevant to the guilt or innocence of the Appellant on the murder charge and should have been referred to in this connection. What is said is that if the Appellant was in truth defending himself against Mak this tended to negative any common design to attack the Deceased. That was an argument which could fairly have been put before the jury, but it was an aspect of the evidence which counsel never referred to. It is said that such a failure by counsel does not exonerate the judge from referring to it. The principle that the duty of a judge is not limited by the manner in which counsel presents the case for the defence should not be thought to extend to require a judge to mention every relevant piece of evidence: it extends only to requiring him to direct them upon issues of law which arise on the evidence. In our view the particular failure alleged here could only be material if it could be said that it resulted in a failure to put the defence adequately. To have that result a single piece of evidence not referred to by the judge would have to be of outstanding importance. The issue whether the Appellant had a common design to attack the Deceased was clearly before the jury and we think the omission complained of was of no consequence. Counsel took what he conceded to be a small point but one which, he said, might have influenced the jury. The judge referred to the small size of the teahouse where the incident occurred and continued: " That is a factor which you may consider of some importance in considering whether the accused was engaged in a joint enterprise". As I understand the argument it is suggested there was a danger that the jury might have thought mere proximity was itself sufficient evidence of common intent. Proximity, of course, was relevant to the elements of presence and participation. We do not think the direction could be said to raise any real doubt concerning the safety of the conviction. It is submitted that the judge was wrong in not telling the jury expressly what their verdict should be if they came to the conclusions (1) that the Appellant knew Chu had a knife but (2) that he may not have known that the knife was to be used. While it might have completed the picture we do not think there was any obligation upon the judge to do this. The jury were told very clearly what common intent had to be found before they could convict either of murder or of manslaughter: it was never suggested that mere knowledge of the existence of the knife would make the Appellant guilty of any offence at all. The only comment we would make is that the learned judge spoke of "a verdict of manslaughter" and at no point explained to the jury that if they thought the Appellant was guilty of manslaughter the proper verdict would be "Not guilty of murder but guilty of manslaughter". No point arises on this in the present appeal but we mention it for purpose of avoiding difficulty in subsequent cases. The other matters argued do not warrant mention in this judgment and the application for leave to appeal is dismissed. Representation: (1) 1967 2 A.C. 187. (2) 1969 1 W.L.R. 839. 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