(1) TSUI Wing-kwong Appellants
(2) CHAN Yun-ki
THE QUEEN Respondent

Coram: Rigby, C.J., Huggins and Leonard, JJ.

Date of Judgment: 21st August, 1972.




Rigby, C.J.:

1. This is an application for leave to appeal against a conviction for murder. The two applicants were convicted of murder on the 18thMay and they now apply for leave to appeal against that conviction. They are aged 17 and 19 respectively. The facts of the case maybe briefly stated. At about 8 a.m. on the morning of the 26th December last year a man was found lying dead outside the entranceto Block 2 of the Shatin Pass Low Cost Housing Estate. He had earlier been seen lying there at about 6.30 that morning by a cleaningwoman, who had taken no notice of him. He was taken to hospital and examined, and it was found that he had a number of superficiallacerations and abrasions including a cut on the right arm. However, he also had a wound in the back which penetrated the aorta andthe cause of death was found to be internal haemorrhage. It was said by the forensic pathologist that the death must have followedvery shortly after the wound had been inflicted. There was evidence that the deceased was in the habit of taking a walk in the earlymorning with a friend of his round about 6.30 a.m., and the medical evidence was that he died between 6 and 7 o’clock that morning;that was on the 26th December.

2. On the 6th January, at about 2.30 a.m., a party of police raided an apartment house in Nathan Road, Kowloon. There they apprehendedseven young persons, five males and two females, and took them back to the police station for questioning. Amongst those personsapprehended were the two present appellants. It would appear that as a result of the interrogation the two appellants made statementsclearly implicating themselves in the commission of this offence of killing that man who had been found lying dead outside the ShatinPass Low Cost Housing Estate. The admissibility of those statements was strongly challenged, but they were ruled as voluntary bythe learned trial judge who subsequently left them for consideration by the jury.

3. It is true to say that practically all the evidence against the two appellants consists of the statements made by them, subject onlyto the fact that the first appellant informed the police of the place where the knife allegedly used by him in the course of thiskilling had been hidden by him, and the police went to two places and in one of them, hidden away in a low cost housing estate building,they found a knife which was produced in evidence. There was medical evidence that certainly some of the wounds found on the bodywere consistent with having been caused by that knife.

4. The second appellant made a statement, in the course of which he mentioned that subsequent to the commission of this offence he hadbeen concerned with another person in a robbery. During the course of that robbery the knife had been wrested away from him and retainedby the person whom he and his confederate had sought to attack and rob. As a result of further investigation by the police that manwas in fact traced and a knife was produced in evidence. The witness said that that was the knife he had wrested from his assailantat the time of the assault upon him. There was, of course, the statement earlier made by the appellant that that was the knife whichhe had used in the course of the robbery resulting in the death of the deceased. The medical evidence given stated that the woundfound – the stab wound found in the back – was consistent with having been caused by that knife.

5. The defence put forward by the first appellant at the trial was an alibi. He denied his statement made to the police. He said thatit was untrue and had been improperly obtained and there was not a word of truth in it. The second appellant told a different story.He admitted that he did take part in this assault and robbery committed on the deceased, but he said that he had done it in companywith another man, that he himself was violently attacked by the victim, that the other man had come to his assistance and it wasin those circumstances that the other man had stabbed the deceased. Those were the defences which were put before the jury.

6. The learned trial judge summed up to the jury that the case for the prosecution was that the two appellants had gone with the purposeof robbing somebody, namely, the deceased, that they were armed at the time and that they intended to use their weapons in orderto overcome resistance of any victim that they might find. Towards the end of his summing-up he put a number of questions to thejury in these terms: he said, “First, you must ask yourselves: Did the accused person on the early morning of the 26th December gotogether to the Shatin Pass Low Cost Housing Estate with the intention of committing a robbery?” If the answer to that question wasin the affirmative, then they should ask themselves the second question: “Was each of them armed with a knife?” If their answer tothat was in the affirmative, then they should ask themselves, thirdly, “Did each of them intend to use his knife in any way to facilitatethe carrying out of the robbery?” If their answer to that was in the affirmative, they should ask themselves, fourthly: “Did eachof them intend that, if the victim put up resistance, did each of them intend to overcome the victim’s resistance by using the knife?”If their answer to that question was in the affirmative, then they should ask themselves: “Did each of them in going there with thatdegree of intention, up to that point, did each of them foresee that in doing that, either he himself or his companion might inflictat least a grave bodily injury on the victim in order to overcome his resistance?” If their answer to that was in the affirmative,they should ask themselves: “Did each of them in fact take part in a concerted attempt to rob the deceased?” If their answer to thatwas in the affirmative they should ask themselves: “In the course of that attempt, did the deceased receive the injury which causedhis death?” And he finally said, if they were prepared to answer all those questions in the affirmative, then they should find boththe accused guilty of the offence as charged.

7. Mr. Goodbody who appears for both the appellants, said that there were no arguments he could advance in so far as the second appellantwas concerned. In so far as the first appellant was concerned he complained that the trial judge did not leave the issue of manslaughter- the possible alternative of manslaughter – open to the jury. We understand that he puts forward that argument on the basis thatin the first appellant’s own statement to the police – which is in fact vital evidence against him – he asserts that he acted inself-defence. It was further suggested that the first appellant, whether or not he acted in self-defence, having regard to the weaponfound in his possession, did not intend to cause serious bodily harm and that that weapon was unable to cause serious bodily harm.Mr. Goodbody submitted that, in those circumstances, there was no common intention between the two accused persons and that in sofar as the first appellant was concerned, either he was acting in self-defence or he did not intend to cause serious bodily harm.As to that argument, the learned trial judge, at the conclusion of his summing-up to the jury, said this:-

“There is a further possibility as regards the first accused which I have to refer to, although I do not think that in his case anyquestion of manslaughter can arise either. If you look at the first accused’s primary statement upon which the case of the prosecutionrests you will see that he refers firstly to the fact that he did not intend to take life and secondly that he was attacked and thathe chopped in self-defence, and there is in addition to that, of course, the doctor’s evidence that the marks on the forearm couldhave been caused by the weapon which on the evidence – if you accept it – was being held by the first accused. So if you are in reasonabledoubt and think that the deceased did set upon them as that statement suggests, and that he defended himself – the first accusedthis is – by chopping at the deceased’s forearms and that up to that moment he personally had not foreseen the possibility that eitherhe or his companion would use their weapons to cause death or grievous bodily harm and that what the second accused then did tookhim by surprise and went beyond what he expected was going to happen so that he – there could be no common intention between them.In other words he was taken by surprise by the stabbing in the back and did not intend or foresee that that was likely to happenand that all that he had done was to chop at the other man’s arms and inflict wounds which you may think were not very serious inorder to protect himself, then if you were in reasonable doubt to that extent as regards the first accused and thought that the secondaccused had departed entirely from any preconceived plan that they might have had between them by striking a fatal blow, again youwould have to acquit the first accused……”

8. In our view, that was an entirely proper direction to the jury, and on the defence raised by the first appellant there was no ground,and no evidence, upon which the learned trial judge could properly leave the alternative verdict of manslaughter to them. For thesereasons, the applications for leave to appeal against conviction by both the appellants must be dismissed.


Goodbody assigned for the Appellants.

Duckett, S.C.C. for Crown/Respondent.